06 · ARBITRAL PROCEEDINGS
Arbitral proceedings
How arbitration begins and develops: eight questions on the seat, language, evidence, hearings and court assistance.
How is arbitration commenced?
It starts with the notice or request prescribed by the agreement, applicable rules and law.
Before submitting the request, identify the agreement, covered dispute, recipient and appointment mechanism. Institutional rules may require filing with the institution and payment of a fee.
Commencement differs from tribunal formation. The initial notice may precede the arbitrators’ acceptance of appointment. Keep proof of delivery and comply with notification requirements.
Hypothetical example
A supplier wants to recover an unpaid invoice through arbitration. The contract clause identifies the institution where the request must be filed. An email to the buyer announcing an intention to arbitrate does not replace that filing.
In Mozambique: Article 25 of Law 11/99 sets commencement, unless otherwise agreed, at the respondent’s receipt of the request to refer the dispute to arbitration. See also Articles 17, 18 and 26.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 17, 18, 25 and 26
- UNCITRAL — Arbitration Rules · Article 3 — notice of arbitration
What is the seat of arbitration and how does it differ from the hearing venue?
The seat is the arbitration’s legal place. Hearings may be held elsewhere, or by videoconference, without changing the seat.
The seat connects arbitration with a legal system and matters to procedural law and court supervision of the award. It differs from the law governing the contract and the parties’ nationalities.
A hearing may take place in another country or by videoconference without automatically changing the seat. The agreement and procedural decisions should keep this distinction clear.
Hypothetical example
The parties choose Maputo as the seat and hear a witness by videoconference from Lisbon. The witness’s location does not by itself move the seat to Portugal.
In Mozambique: Article 27 distinguishes the agreed or determined place of arbitration from meetings and procedural steps elsewhere. Article 68 addresses Law 11/99’s territorial scope and its stated exceptions.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 27 and 68
- UNCITRAL — 1985 Model Law, with 2006 amendments · Articles 1(2) and 20
How is the language of proceedings determined?
The parties may choose the procedural language. If they do not, it is determined by the body authorised under the applicable law and rules.
The contract’s language does not necessarily determine the procedural language. Consider the agreement, rules, documents and participants’ ability to participate effectively.
Also address document translation, interpretation of testimony and the language of decisions. Translating everything may increase costs; dispensing with essential translations may impair a party’s defence.
Hypothetical example
The parties choose Portuguese, but an expert speaks only English. Interpretation and decisions on necessary document translations can be arranged without automatically changing the procedural language.
In Mozambique: For international commercial arbitration, Article 56 permits agreement on one or more languages; failing agreement, the tribunal decides. It may order translations. For special regimes, also consult applicable sectoral provisions.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 2, 27 and 56
- UNCITRAL — 1985 Model Law, with 2006 amendments · Article 22
How do procedural law and the law governing the dispute differ?
Procedural rules determine how arbitration is conducted. The law governing the merits determines the disputed rights, such as whether a debt or liability for damages exists.
The selected rules address matters such as appointments, deadlines and hearings. They do not replace all mandatory provisions of applicable arbitration law, often linked to the seat.
Substantive law answers questions such as whether a breach occurred and what damages are due. It may differ from the seat’s law. The law governing the arbitration agreement is another distinct issue.
Hypothetical example
An arbitration seated in Maputo follows institutional rules while the contract specifies Portuguese substantive law. These are different choices; choosing Portuguese law does not automatically transfer the seat.
In Mozambique: Article 27 governs procedural choices; Articles 34 and 54 address the merits’ applicable law. Legal limits and the distinction between the general and international commercial frameworks must be respected.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 27, 34 and 54
- UNCITRAL — 1985 Model Law, with 2006 amendments · Articles 19 and 28
How are submissions and evidence organised?
The tribunal organises claims, defence, documents, witnesses and experts under the agreement and applicable rules, respecting equality and the opportunity to be heard.
Submissions set out facts, claims and the defence; evidence helps establish those facts. A procedural timetable specifies what each party must submit and when. A large volume of documents will not strengthen a case if they are irrelevant.
The tribunal may organise document requests, witness testimony and expert reports. Discovery in some common-law systems is a process for obtaining and disclosing evidence that may be extensive. Choosing arbitration does not automatically adopt it.
Hypothetical example
In a defects dispute, the contractor submits technical reports and the employer identifies complaint correspondence. The tribunal sets deadlines for responses and any expert evidence.
In Mozambique: Articles 28–32 govern submissions, hearings, representation and evidence. Article 27 provides organisational powers, including admissibility, relevance and weight of evidence, within legal limits.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 2 and 27–32
- IBA — Rules on the Taking of Evidence in International Arbitration (2020) · 2020 Evidence Rules, Articles 3–9
- UNCITRAL — Notes on Organizing Arbitral Proceedings (2016 and additional 2023 note) · Evidence organisation and timetable
How do hearings, including virtual hearings, work?
Hearings allow arguments and oral evidence to be presented; their format must ensure effective participation and the opportunity to be heard.
Proceedings may include in-person, remote or hybrid hearings where permitted. Some cases may be decided on documents, but the agreement and any statutory right to a hearing must be respected.
Remote hearings require arrangements for participant identification, documents, interpretation, recording, witness communications and technical failures. A platform alone does not ensure fair proceedings.
Hypothetical example
A witness joins from another city. The protocol identifies anyone in the room, prevents improper assistance and provides for a pause if the connection fails during questioning.
In Mozambique: Article 29 distinguishes hearings and written proceedings and provides for a hearing at a party’s request unless the parties agreed otherwise. Organisation must respect Articles 2 and 27. Law 8/2024’s judicial framework should not automatically be transferred to every arbitration.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 2, 27 and 29
- IBA — Rules on the Taking of Evidence in International Arbitration (2020) · Article 8(2) — remote hearing
- UNCITRAL — Notes on Organizing Arbitral Proceedings (2016 and additional 2023 note) · Hearing organisation
Can interim measures be ordered, and who decides them?
Yes. Such measures seek to prevent loss of assets or evidence, or an ineffective final decision, while proceedings continue. They may be sought from arbitrators or courts according to their respective powers.
Interim measures protect the effectiveness of the final decision, for example by preserving assets or evidence. They differ from a final decision granting the claim.
Check authority, urgency, conditions and security. An arbitral order may need court assistance for coercive enforcement. Emergency arbitrators and measures without prior notice depend on the selected framework; they are not presumed in every arbitration.
Hypothetical example
A party fears destruction of technical records. It may seek a preservation measure, explaining the need, from the authority competent under the applicable framework.
In Mozambique: Article 33 permits the tribunal, unless otherwise agreed and on a party’s request, to order interim measures and require security. Article 12(4) allows court requests before or during arbitration without incompatibility with the agreement.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 12(4) and 33
- UNCITRAL — 1985 Model Law, with 2006 amendments · Chapter IV A — interim measures
What role do national courts play during arbitration?
Courts may assist arbitration and exercise legally prescribed supervision without replacing the arbitral merits decision.
Assistance may include appointments, interim measures and obtaining evidence. Review may concern jurisdiction, arbitrator challenges or the award at the prescribed stages.
Even with an arbitration agreement, court intervention may be needed. It requires a legal basis: disagreement with an arbitral procedural decision alone does not entitle a party to ask a judge to replace it.
Hypothetical example
A third party will not voluntarily provide essential evidence. The party should not assume arbitrators possess the same coercive powers as a judge; it should check the court-assistance mechanism.
In Mozambique: Consult Articles 9, 12, 18, 23, 32 and 37. Post-award intervention is addressed in Articles 44–51. Article 32 provides for court assistance in obtaining evidence at the tribunal’s request or at an authorised party’s request.
Sources for this answer
- Law 11/99 of 8 July — Arbitration, Conciliation and Mediation (Portuguese) · Articles 9, 12, 18, 23, 32, 37 and 44–51
- UNCITRAL — 1985 Model Law, with 2006 amendments · Articles 5, 6 and 27
Supplementary reading
FICHTNER, José Antonio; MANNHEIMER, Sergio Nelson; MONTEIRO, André Luís. Teoria geral da arbitragem. Rio de Janeiro: Forense, 2019. Chapters 1 and 2 as supplementary doctrinal references; the work focuses on Brazilian law.