Supreme Court of Justice (Portugal)
Case Nr. 05B3766
When recognition of an award under the New York Convention is being contested, it is the provisions of the Convention and the law of the seat of the arbitration that must be used to determine if proper notice of appointment of arbitrator and commencement of proceedings was given.
- As per the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the party against whom recognition of an award is sought has the burden of furnish proof that it was not properly notified of the appointment of the arbitrator and of the commencement of arbitral proceedings.
- There is no requirement under the New York Convention (Art. V(1)(b)) that the notification of appointment of an arbitrator or commencement of the arbitral proceedings be made by registered letter with acknowledgement of receipt nor that the notification and the annexed documents be translated to Portuguese.
- The regularity and correctness of the notification of the defendant required under Art. 1096 of the Portuguese Code of Civil Procedure must be assessed under the law of the seat of arbitration.
- As arbitration has its own procedure, it shall be conducted according to the law applicable to arbitration, and not according to the Portuguese Code of Civil Procedure. Thus, there is no requirement for notification by registered letter with acknowledgment of receipt as specified by Arts. 233(2)(a), 236 and 247 of the Portuguese Code of Civil Procedure.
- If the parties did not provide in the arbitration agreement for any specific formality of notification, what really matters is whether the party against whom the decision was made was, in fact, placed in a position to willingly defend its points of view before the arbitral tribunal.
- When Art. V(2)(b) of the New York Convention provides that the recognition and enforcement of a foreign arbitral award may be refused if contrary to the ‘public policy’, it refers the so-called ‘international public policy’ of Portugal, as provided in Art. 1096 of the Portuguese Code of Civil Procedure.
- The international public policy if a set of structuring principles pertaining to Portugal’s presence within the international community – such is the case of the principle “pacta sunt servanda” – but there is no such principle requiring the notification to be made by registered letter with acknowledgement of receipt nor that such notification be made in the language of the recipient.
This case summary was kindly prepared by Sameer Thakur (email@example.com, NALSAR University of Law), Rishabh Raheja, (firstname.lastname@example.org, NALSAR University of Law), and Abhishek Babbar (email@example.com).