Lisbon Court of Appeal | Arbitrators’ Fees | Due Process | 19-02-2015 | Case #085
Lisbon Court of Appeal
Case Nr. 1422/14.5YRLSB.L1-8
In arbitral proceedings, compliance with the due process principles must always be guaranteed.
However, the tribunal may decide immediately on certain submitted requests without necessarily hearing the parties, provided that such requests concern procedural matters only and do not require the contribution of the opposing party or the other parties, the determination of the arbitrators’ fees being one of such procedural matters.
- The arbitration procedure has its own distinctive features that distinguish it from the proceedings before the State courts. However, it shares with state court litigation the same functions of conflict resolution and contribution to social peacemaking, which necessarily create points of contact in many respects.
- However, these dispute resolution mechanisms present differences in the way they are organized and unfolded, and the methods used to conduct the case.
- First of all, the Code of Civil Procedure does not apply to arbitration proceedings.
- The principle of due process must be complied with at all stages of the arbitration proceedings.
- Similarly to other principles, the principle of due process applies both in arbitration and judicial litigation, and it is expressed in several provisions of the Portuguese Arbitration Law, such as Article 34. Its compliance requires that no request addressed to the arbitral tribunal by any of the parties may be decided without the other party or other parties being given the right to be heard on such request. The arbitral tribunal shall take a position only on the request made to it after complying with this command.
- In exercising the power of the arbitrators to moderate the dispute, they may decide immediately on certain submitted requests without necessarily hearing the parties, provided that such requests concern procedural matters only and do not require the contribution of the opposing party or the other parties. In so doing, the arbitral tribunal shall gather all the necessary pieces of information to decide, also in accordance with the interests of simplicity and objectivity that are the hallmarks of the arbitral proceedings.
- The model for establishing the fees used in this arbitration was the so-called “ad valorem method”, which uses a table calculated according to the value of the claim, as opposed to the “per diem system method “, which calculates the costs of arbitration by setting an hourly rate according to the work to be performed by the arbitrator, which is disconnected from the value of the claim.
- The time to be spent until the termination of the proceeding is a variable that is always difficult to quantify, and leads to the conjecture of an average duration of the proceeding, always bearing in mind that the arbitrators are obliged to give a certain rhythm to the arbitration and must comply with certain duties, such as the duties of diligence, efficiency and availability.