Portugal updates

Arbitration & ADR

Arbitrator removed after repeated appointment in patent enforcement disputes
  • Portugal
  • 03 September 2015

The Lisbon Court of Appeal recently ruled on a request to remove an arbitrator in proceedings between a patentee and the applicant for marketing authorisation for a generic medicine. The court decided that the arbitrator's repeated appointment by the same parties in disputes about the same active ingredient cast doubt on his independence and ordered his disqualification.

Back on the right track: Supreme Court rules on multi-contract arbitration
  • Portugal
  • 29 September 2011

A recent case arose from the disputed connection between three contracts, of which only the first included an arbitration clause; however, the third contract generally incorporated the first. The Supreme Court held that the temporal, functional and economic connection between the contracts made clear that despite the autonomy of the contracts, the arbitration clause in the first contract applied to the third.

Overview (June 2011)
  • Portugal
  • 09 June 2011

Including: A decade of growth; Case law; New arbitration legislation.

Court rules on objective arbitrability and non-disposable rights
  • Portugal
  • 17 March 2011

Disputes concerning non-disposable rights cannot be arbitrated. However, the Lisbon Court of Appeal recently held that in such cases the invalidity of an arbitration agreement relates only to those rights which are absolutely non-disposable, not to those which are relatively non-disposable, such as rights that involve an economic interest.

Supreme Court rules on grounds for annulment of arbitral awards
  • Portugal
  • 06 January 2011

The Supreme Court recently addressed the mechanisms available, under both arbitration legislation and the Code of Civil Procedure, to parties seeking to challenge an arbitral award. The decision is seen as favouring arbitration in general, but recommends amendments to the legal framework for challenging arbitral awards - a new draft law proposes an improved approach to a number of its shortcomings.

Asset Finance

High-Speed Rail Network Affords New Prospects for Private Investors
  • Portugal
  • 11 August 2004

The creation of a new high-speed rail network in Portugal, and the utilization of rail assets by private entities on a concession basis, constitutes an excellent opportunity for private investment. Compatibility between the infrastructure and the rolling stock is crucial, so as to obtain the best results in terms of performance, safety, service quality and costs.

New Investment Opportunities Involving Public Rail Assets
  • Portugal
  • 03 December 2003

The new legal framework governing rail assets that form part of the public domain has established new rules and investment possibilities, opening the door for deals involving assets which were formerly off-market. There is now a greater opportunity to conclude transactions such as cross-border leases and sale lease-back structures.

Second Mortgages over Factories - a Risky Proposition
  • Portugal
  • 23 April 2003

In Portugal, mortgages over factories can be extended to cover all machinery, equipment and other chattels pertaining to the factory, as long as the relevant assets are listed in the mortgage deed. This increases the value of the collateral while at the same time linking the security of the credit facility to assets that are essential for the company to carry out its activities.

Banking & Financial Services

Banks, customers and other third parties: rules and regulations
  • Portugal
  • 07 September 2018

Although the 2008 financial crisis triggered further legislation to protect banking clients and investors, the relationship between banks and customers had been a focus of legislators and regulators long before the banking collapse. Rules and regulations in this regard concern deposit compensation, bank-client relationships, consumer complaints, breaches of contract, residential mortgage loans and minimum information duties.

Bank governance and internal controls
  • Portugal
  • 17 August 2018

The Banking Law establishes that the management and supervisory bodies of credit institutions in Portugal are responsible for defining, overseeing and implementing adequate governance to ensure the institutions' effective and prudent management, including the segregation of duties and the prevention of conflicts of interest. Further, banks must disclose information regarding the remuneration of corporate bodies and employees to the Bank of Portugal or the Single Supervisory Mechanism.

Resolution strategies in wake of 2008 banking crisis
  • Portugal
  • 10 August 2018

Following the 2008 banking crisis, the Banking Law was amended to protect depositors of all credit institutions and safeguard the stability of the EU banking system as a whole. Under the law, the Bank of Portugal may apply a number of resolution measures to failing institutions which do not involve obtaining prior consent from their shareholders or a third party. It can also create a resolution fund, which aims to provide financial support for the implementation of measures to help failing credit institutions.

Regulatory architecture: overview of banking regulators and key regulations
  • Portugal
  • 27 July 2018

The Portuguese supervisory system has changed following the recent establishment of a single supervisory mechanism and a single resolution mechanism, which are comprised of the European Central Bank (ECB) and national competent authorities. The ECB is responsible for the overall functioning of the single supervisory mechanism and the single resolution mechanism, as well as having direct oversight of eurozone banks in cooperation with national supervisory authorities.

Related party transactions and shareholder approval
  • Portugal
  • 18 June 2013

Related party transactions between public companies are common. However, by entering into such transactions, an entity could affect the balance sheet of another, making it incur losses or profits in such a manner that would be impossible in a transaction with independent third parties. These transactions are at a crossroads in terms of applicable rules; however, the International Accounting Standards provide key guidance.

Competition & Antitrust

Competition enforcement in Portugal – 2017 in review
  • Portugal
  • 11 January 2018

The new Competition Authority president recently completed her first full year in office with impressive results. Since November 2016 the authority has adopted six infringement procedure decisions, one commitment decision and two fining decisions. Further, the transposition of the EU Directive on Antitrust Damages Actions into national law appears to be close to completion. As a result, it seems likely that 2018 will start with the approval of a new legal framework for the private enforcement of competition law.

Competition Authority finds that exchange of information on prospective prices did not infringe competition law
  • Portugal
  • 02 November 2017

The Competition Authority recently ended an investigation into the exchange of prospective prices between pork meat producers, meat processors and slaughter houses with no finding of anti-competitive practice. This is the first Competition Authority decision to validate an information exchange scheme involving (but not limited to) competitors. As such, more straightforward guidance from the authority on how this case differs from prior cases and justifies such a benign approach would have been welcomed.

A busy year: overview of Competition Authority's 2017 activities
  • Portugal
  • 21 September 2017

To date, 2017 has been a busy year for the Competition Authority. During the first half of the year, the Competition Authority made 36 dawn raids on companies operating in several economic sectors. Although no details of the dawn raids have been released, the authority has clarified that it gathered evidence concerning cartel activities and other practices concerning the offering of goods and services with a direct impact on the final consumer.

Margin squeeze win for Competition Authority reversed almost entirely on appeal
  • Portugal
  • 17 August 2017

In a significant defeat for the Competition Authority, the Lisbon Court of Appeal has partially reversed a first-instance judgment and repealed the main fine imposed in a margin squeeze case which involved pharmacies' sales data for prescription medication and consumer health products. The decision re-emphasises the autonomy, for antitrust liability purposes, of separate legal parties in the same economic group.

Fighting bid rigging: Competition Authority's advocacy initiative in public procurement
  • Portugal
  • 27 April 2017

The Fighting Bid Rigging in Public Procurement campaign is a highlight of the Competition Authority's recent advocacy initiatives. The campaign is intended to raise awareness among the state bodies that regularly award public contracts of the most common issues concerning bid rigging in public procurement. It also advises on how to detect illegal practices in the context of public tenders and design tender programmes in a way that inhibits potential collusive tendering.

Corporate & Commercial

No Analogy Between Trademarks and Company Names
  • Portugal
  • 11 June 2007

The Supreme Court was recently asked to decide whether a company may demand that another company with a similar name forfeit the right to use the name, even if such use has been accepted for a number of years. The Court of Appeals had found that the rights relating to a company name are analogous to trademark rights and had applied the same time limit for objections on this basis.

Supreme Court Rules on Managerial Responsibility of Partner
  • Portugal
  • 22 January 2007

The signature on a promissory note of a partner in the capacity of manager (where such capacity is not stated in the Commercial Register) is not binding on the company - despite the production of minutes attesting to the fact that the partner was entrusted with the management of the company - if such minutes were not signed by another partner whose managerial capacity is recorded in the register.

Supreme Court Rules on Director's Power to Bind the Company
  • Portugal
  • 22 January 2007

The Companies Code provides that a private limited company is not bound by the signature of only one of its directors if its articles of association provide that the signatures of two directors are required to bind it, unless the company ratifies the action. However, a Supreme Court judgment has cast doubt on the safety of legal transactions by reversing an established view of directors' responsibility.

Court of Auditors Granted Wider Supervisory Powers
  • Portugal
  • 13 November 2006

An amendment to the rules governing the Court of Auditors extends the scope of the court's financial supervision to include undertakings which hold a concession for public works and services and for the management of undertakings, state-owned companies and semi-public companies.

Simplifying Increases and Reductions in Share Capital
  • Portugal
  • 09 October 2006

Significant changes to the Portuguese Companies Act have streamlined the procedure for amending company bylaws by doing away with the requirement for a notarial deed in many cases. The new administrative requirements make it easier for companies to increase or reduce their share capital.