Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
The Civil Code of Mozambique is the Civil Code of Portugal as it stood at the time of independence in 1975 with subsequent amendments introduced by the Mozambican legislative bodies. For the applicable choice of law provisions see the translation of the Portuguese Civil Code to be found in the section PORTUGAL.
Code of Civil Procedure1
Former Portuguese Civil Procedure Code, Decree-Law no 44129, of 28 December 1961, with the modifications introduced by Decree-Law no 47690, of 11 of May 1967, applied to the former ultramarine provinces by the extension regulation no 23090, of 26 December 1967, and by Decree-Law no 1/2005, of 27 December and Decree-Law no 1/2009, of 24 April.
Article 61. International jurisdiction – connecting factors
Mozambican courts have international jurisdiction whenever any of the circumstances mentioned in article 65 occur.
Article 65. Grounds for attribution of international jurisdiction
– The international jurisdiction of Mozambican courts is dependent upon the presence of any one of the following circumstances:
The action should be brought in Mozambique under the rules of territorial jurisdiction established by the Mozambican law;
The fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Mozambican territory;
The defendant is foreign and the applicant is Mozambican; or whenever, in the inverse situation, the Mozambican national might have been sued before the courts of the State to which the defendant belongs;
Effect cannot be given to the invoked right other than through an action filed in a Mozambican court, as long as there is a relevant connecting element, either personal or physical, between the action to be filed and the Mozambican territory.
The action is referred to rights in rem or personal rights of enjoyment over immovable property located in Mozambican territory.
The process is a special bankruptcy or insolvency procedure of legal persons or societies domiciled in Mozambique, according to this article;
The process conducts to the validity appraisal of deliberations of social organs of legal persons or societies domiciled in Mozambique.
p. 3583– When, according to Mozambican law, the court of the domicile of the defendant is competent, Mozambican courts may exercise jurisdiction as long as the defendant is domiciled in Mozambique or is incidentally in Mozambican territory, as long as, in the latter case, the obligation is in respect of a Mozambican national.
– For the purposes of the previous number, foreign legal persons and societies are considered to be domiciled in Mozambique as long as they have here a statutory or real seat, a branch, agency, subsidiary, delegate or representation.
Article 99. Derogation of jurisdiction and choice of forum agreement
– Parties may agree that a dispute, or the disputes that may arise from a certain fact, are settled by the courts of one of the parties or by international courts.
– The choice of the courts may involve the conferral of exclusive or concurrent jurisdiction with other courts.
– That choice is only valid whenever the following cumulative requirements are met:
correspondence to a serious interest of both parties or of one of them, as long as it does not cause serious inconvenience to the other party;
incidence over non inalienable rights or over disputes covered by paragraphs d) to g) of article 65, n. 1.
observance of the provision of the n. 2 of the following article.
– In case of doubt the jurisdiction is presumed to be alternative to the one prescribed by law.
Article 100. Contractual competence
– The agreement shall satisfy the formal requirements of the contract source of the obligation, as long as it is written, and must indicate the questions to which it refers to and the designated competent court.
Article 1094. Necessity of revision
– Without prejudice to what is established in Treaties and special laws, no decision on private rights, delivered by a foreign court or by arbitrators abroad, is effective in Mozambique, regardless of the parties’ nationality, without revision and confirmation.
– No revision is necessary when the decision is invoked merely as evidence in a pending proceeding before Mozambican courts. The evidence is subject to the assessment of the judge.
Article 1095. Competent court
The Supreme Court is competent for the revision and confirmation.
Article 1096. Necessary requirements for confirmation
For a judicial decision to be confirmed it is necessary that:
no doubts arise over the authenticity of the document that contains the judicial decision or over the intelligibility of the decision;
it is final according to the law of the Country where it was delivered;
it originates from a court competent under the conflict of jurisdiction rules of Mozambican law;
lis pendens or res iudicata exceptions cannot be raised regarding a case litigated in a Mozambican court, except if it was the foreign court that prevented jurisdiction;
p. 3584the defendant has been duly served, except in cases where initial service would be waived under Mozambican law; and, that if the defendant is immediately subject to the jurisdiction of the court by virtue of a failure to contest jurisdiction, that the service was performed on his person;
it contains no decisions contrary to the principles of Mozambican public policy;
having been delivered against a Mozambican national, it does not offend the provisions of Mozambican private law, whenever Mozambican private law would, under the conflict of laws rules of Mozambican legislation, have applied to resolve the dispute.
Article 1097. Confirmation of arbitral decision
The provisions of the preceding article are applicable to arbitral decisions, to the extent that they can be.
Article 1098. Defence and reply
Once the document containing the decision to be reviewed is presented with the petition to the court, the counter-party is served and can, within ten days, raise its defence. The applicant may reply in the eight days subsequent to the term defined for the defence.
Article 1099. Statements and hearing
– Once the statements have been made, and all the procedural steps ordered by the judge rapporteur have been carried out, the process is made accessible to the parties and the Public Prosecutor for ten days each, for summation.
– The Trial is conducted according to the rules applicable to appeals of grievance; however, the adoption of the decision requires three conforming votes, following the procedure for new visas, when necessary.
Article 1100. Grounds for challenging the claim
The claim can only be challenged if any of the requirements mentioned in article 1096 is absent or if any of the grounds for revision specified in paragraphs a), c) and g) of article 771 arises.
Article 1101. Ex officio activity of the Court
The court shall verify ex officio if the conditions set out in paragraphs a), f) and g) of article 1096 are satisfied, and shall also deny ex officio the confirmation when, through examination of the procedure or through knowledge acquired in the exercise of its functions, it concludes that any of the requirements in paragraphs b), c), d) and e) of the same provision are lacking.
Unofficial translation by Dulce Lopes, Assistant Professor at the Law Faculty of the University of Coimbra (Portugal) and Invited Lecturer at the Law Faculty of the Catholic University of Lille (France).