(Portugal) Supreme Court of Justice | Counterclaim – Admissibility | 14-05-2019| Case #93
Case nr. 1296/17.4YRLSB.S1
According to Art. 33(4) of the Portuguese Arbitration Law, the admissibility of a counterclaim depends on the subject matter being or not envisaged in the arbitration agreement. Given that the parties agreed on computing the final production of results merely after the total conclusion of the works, the counterclaim for compensation of damages is inadmissible.
I – The consortium is not a subject of rights and obligations different from the members that compose it, and the respective income and costs are reported as a result of the conciliation of the respective activities.
II – The admissibility of the counterclaim in arbitral proceedings depends on the subject matter being encompassed by the arbitration agreement.
III – Since that it was established in the consortium agreement that only after the total conclusion of the works and supplies would the final production of results be computed and that the consortium members decided that the object of the arbitration agreement included the “inquiry of the breach of contract by the Claimant” and the “conviction of the Claimant to reimburse the internal consortium constituted between the parties, in an amount to be determined as a compensation for damage caused to the consortium on account of its alleged breach of the contract”, the interpretation that it does not envisage a counterclaim for compensation of damages caused to the consortium by the defendant’s alleged breach of contract is in accordance with the provisions of Arts. 236(1) and 238(2) of the Portuguese Civil Code.
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