OVERVIEW · CHAPTER 03
Arbitration agreements and arbitrability
Consent, formal requirements and the limits on submitting disputes to arbitration.
Arbitration clauses and submission agreements
An arbitration clause covers future disputes arising from an identified legal relationship; a submission agreement concerns an existing dispute. Article 10 requires writing and addresses signed documents, communications and incorporation by reference. The subject matter must be sufficiently identified. Paragraph 5 imposes a specific effectiveness requirement for clauses in contracts of adhesion.
Separability under Article 11 means that invalidity of the contract does not automatically invalidate the arbitration agreement. It remains necessary to examine whether the defect also affects that agreement. The law governing the contract, the parties’ capacity and the validity of the arbitration agreement may raise distinct questions; Article 44(2)(a) distinguishes incapacity from invalidity.
Sources and references
- Law No. 11/99 of 8 July — Arbitration, Conciliation and Mediation · arts. 4, 10–11, 44 and 55
Who may arbitrate, and which matters?
Article 5 excludes disputes reserved by special legislation to State courts or a special arbitration regime, as well as disputes concerning rights that cannot be disposed of or settled. A claim’s economic character does not remove the need for that assessment. Article 6 contains specific eligibility rules, including restrictions concerning unemancipated minors and legally incapacitated persons.
For the State and other public-law entities, Article 6 must be considered alongside the enabling special legislation, the nature of the relationship and the signatory’s authority. A clause does not cure a lack of authorisation or legal power. Administrative and employment disputes remain subject to the boundaries of their respective regimes.
Sources and references
- Law No. 11/99 of 8 July — Arbitration, Conciliation and Mediation · arts. 5–6 and 55
- Law No. 7/2014 of 28 February — Administrative Judicial Proceedings · arts. 202–226
- Law No. 13/2023 of 25 August — Labour Law · arts. 189–198
Multiple parties, contracts and third parties
Several companies participating in the same project are not necessarily bound by the same arbitration agreement. The contracts, authority to represent a party and any succession or assignment must be examined. Extending an agreement to an entity that did not sign requires a legal basis; membership of the same corporate group does not justify a presumption of consent.
Joinder and consolidation likewise require examination of consent, the applicable rules and procedural safeguards. Statutory silence should be treated neither as unrestricted permission nor as an absolute prohibition. Clauses can anticipate these difficulties, particularly in projects involving interdependent contracts.
Sources and references
- Law No. 11/99 of 8 July — Arbitration, Conciliation and Mediation · arts. 4, 10, 27 and 44
Who decides jurisdiction, and what if a court action is brought?
Article 37 expressly empowers the tribunal to rule on its own jurisdiction, including the existence or validity of the arbitration agreement. It distinguishes a preliminary ruling from a ruling contained in the award and regulates court review. Where jurisdiction is upheld in a preliminary ruling, a party may seek a court determination within thirty days of notification under paragraph 3.
If court proceedings concern a matter covered by the agreement, Article 12 provides for referral to arbitration upon a timely request, subject to its exceptions concerning expiry or inability to perform the agreement. Seeking court interim relief is not incompatible with the agreement. Jurisdiction must be addressed through the appropriate procedures; judicial support does not amount to determination of the merits.
Sources and references
- Law No. 11/99 of 8 July — Arbitration, Conciliation and Mediation · arts. 12–13 and 37