Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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I. Sources of private international law

1. Major legislation

The principal source of Portuguese private international law is the Portuguese Civil Code (Código Civil approved by Decreto-Lei No 47.344, of 25 November 1966, [1966] DG I série 274/1883, with subsequent amendments; consolidated version available at <www.pgdlisboa.pt>; henceforth CC), which deals with the rights of foreigners and conflicts of laws in arts 14 to 65. The international jurisdiction of Portuguese courts and the recognition and enforcement of foreign judgments are regulated in arts 59 to 63, 94 and 978 to 985 of the Portuguese Code of Civil Procedure (Código do Processo Civil approved by Lei no 41/2003, of 26 June 2013, [2013] DR I série 121/3518, henceforth CCP).

Due to the growing body of European private international law contained in EU regulations on conflicts of laws and international civil procedure, the scope of application of these rules has been considerably restricted. In contrast, the accession to independence or to a status of constitutional autonomy of a number of Portuguese-speaking countries and territories in Africa (namely →Angola, Cape Verde, Guinea-Bissao, →Mozambique and São Tomé e Príncipe) and in Asia (as is the case of East Timor, Goa and →Macau, SAR of China), which have received Portuguese private international law in their legal systems, p. 1has given Portuguese private international law a geographical scope of application that greatly exceeds Portugal’s present territory. A ‘Lusophone’ private international law has thus emerged.

More recently, other legislative acts containing private international law rules on specific matters have been adopted in Portugal. This is the case of the Code of Commercial Corporations (Código das Sociedades Comerciais approved by Decreto-Lei No 262/86, of 2 September 1986, [1986] DR I série 201/2293, with subsequent amendments; consolidated version available at <www.pgdlisboa.pt>), which deals with the →personal status of commercial corporations in art 3, the Securities Code (Código dos Valores Mobiliários approved by Decree-Law No 486/99, of 13 November 1999, [1999] DR I série-A 265/7968, with subsequent amendments; consolidated version available at <www.pgdlisboa.pt>), which defines the law applicable to securities in arts 39 to 42, the Labor Code (Código do Trabalho approved by Lei No 7/2009, of 12 February 2009, [2009] DR I série 30/926, with subsequent amendments; consolidated version available at <www.pgdlisboa.pt>), which regulates the international posting of workers in arts 6 to 8, the E-Commerce Law (Decreto-Lei No 7/2004, of 7 January 2004, [2004] DR I série-A 5/70), dealing with the trans-border provision of information society services in arts 4 to 8, and the Law on Insurance Contracts (Regime Jurídico do Contrato de Seguro, approved by Decreto-Lei No 72/2008, of 16 April 2008, [2008] DR I série-A 75/2228), which sets out specific choice-of-law rules for such contracts in arts 5 to 10. Most of these enactments implement European Directives aimed at harmonizing EU Member State domestic laws.

Portuguese →nationality and conflicts between nationalities are dealt with by the Law on Nationality (Lei da Nacionalidade, last amended and republished as an annex to Lei Orgânica No 9/2015, of 25 July 2015, [2015] DR I série-A, 146/5096).

2. International conventions

According to art 8(2) Portuguese Constitution (last amended and republished as an annex to Lei Constitucional No 1/2005, of 12 August 2005, [2005] DR I série-A 155/4642), rules contained in international conventions enter into force in Portugal upon their ratification or approval by the competent state body and their official publication, and remain so as long as they bind the Portuguese state internationally. Thus their transformation into domestic law is unnecessary. Insofar as they are self-executing, they may be invoked in support of claims submitted to Portuguese courts. Furthermore, they prevail over internal legal rules, even if these are enacted after the convention’s ratification or approval. International conventions to which Portugal is party are thus at the top of the hierarchy of private international law sources in force in this country.

Those conventions pertain to the following categories: (i) conventions originating in the →Hague Conference on Private International Law, 16 of which have been ratified by Portugal since 1951; (ii) conventions made under the auspices of the UN, such as the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), in force in Portugal since 1995; (iii) conventions of the International Commission on Civil Status, to which Portugal acceded in 1973, 11 of which have been ratified by the country; (iv) conventions entered into with other EES Member States, such as the →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3); (v) bilateral treaties on legal and judicial cooperation entered into with other nations, such as the agreements with São Tomé and Príncipe (1976), →France (1983), Guinea-Bissao (1988), →Mozambique (1990), →Luxembourg (1992), →Angola (1995) and Cape Verde (2003); and (vi) bilateral investment treaties, such as those concluded with →Germany (1980), →Brazil (1994), Cape Verde (1990), Guinea-Bissao (1991), →Venezuela (1994), →Mozambique (1995), São Tomé and Príncipe (1995), →Tunisia (2002) and Algeria (2004).

3. Role of case-law

Case-law has limited relevance in Portugal, particularly since abolition of the normative rulings (assentos) issued by the Supreme Court, through which new rules could be adopted on points of law which themselves had been the object of conflicting judgments by superior courts. However, Portuguese courts may play a creative role when they apply private international law rules to specific cases, in particular p. 1with regard to general clauses such as →public policy (ordre public) and indeterminate concepts such as the ‘closest connection’, as well as in gap filling. Decisions of the Supreme Court and the Courts of Appeal, which are regularly published in legal journals and made available online, exert considerable influence over lower courts, which frequently cite them in support of their judgments.

4. Role of doctrinal writing

Legal doctrine is particularly influential in Portugal, notably because various fundamental legislative acts were drafted by scholars. This is the case of the CC, which was prepared by a committee of law professors of the universities of Coimbra and Lisbon. Unsurprisingly, that code has been cited as an example of ‘professorial law’. Quotations from doctrinal works are also common in party pleadings and court decisions.

II. History of private international law

Modern Portuguese private international law has found its most significant normative expression in the CC of 1966. This code, however, was preceded by a long doctrinal evolution in which the writings of Ferrer Correia, Magalhães Collaço and Baptista Machado played a prominent role. That evolution reflected the progressive abandonment of the Universalist approach that prevailed in the 19th and the early 20th centuries, particularly in the works of Machado Villela, the founder of contemporary private international law in Portugal. These authors favoured the recognition of private international law-specific interests and values, among which the international harmony of judgments stands out, postulating the equal treatment of domestic and foreign law in the adjudication of disputes arising from cross-border relationships. A significant degree of openness to the application of foreign law (→Foreign law, application and ascertainment), including foreign private international law, thus became one of the hallmarks of the CC.

As a consequence of the enactment of a new Constitution in 1976, the need arose for a reform of certain rules inserted in the CC, namely those regarding relations between spouses and the treatment of children born out of wedlock, which the new Constitution had placed under the aegis of the principle of equality. That reform, passed in 1977, opened the way to more flexible conflict rules, granting judges greater discretion in the determination of the applicable law, notably through the legislative adoption of the concept of ‘closest connection’. More recently, a greater concern with certain eminent social values, such as the protection of the weaker contracting party and the promotion of market competition, led to the adoption of rules that enable courts to give prevalence to ‘internationally mandatory rules’ over the otherwise applicable law.

Two other significant trends have in the meantime emerged in Portuguese private international law: first the specialization of conflict rules through specific enactments in matters such as standard contract terms, agency contracts (→Agency and authority of agents), time-share contracts, sale of consumer goods (→Consumer contracts), e-commerce (→Electronic commerce), etc, in which the relevant →connecting factors are derived from the policies pursued by those enactments, and second the Europeanization of rules on jurisdiction, conflict of laws and the recognition of foreign judgments by virtue of the EU’s adoption of several acts pertaining to this field that are either directly applicable in Portugal or have been transposed into the national legal system by domestic laws.

As a result of this evolution, Portuguese private international law has acquired a highly pluralist nature. Nevertheless, it remains basically faithful to the classic jurisdiction-selecting method and rejects the systematic preference for the →lex fori, as well as the →better law approach, that have prospered in other legal systems. This is a consequence of the recognition that the diversity of laws is inherent in the variety of human cultures and that the scope of application of legal rules, taken as regulae agendi, is necessarily limited both in time and in space.

III. Administration of private international law

In Portugal, all courts that have to decide private international law issues are entrusted with the task of ascertaining and applying foreign law, and may do so ex officio. Accordingly, a party relying on foreign law does not have to plead and prove it. The CC acknowledges this by stating in art 348(1) that ‘he who pleads customary, local or foreign law must prove its existence and content; but the court must seek to p. 1establish it on its own motion’. Article 348(2) CC goes on to say that ‘the court must also ex officio establish customary, local and foreign law, whenever it has to decide on the basis of such law and none of the parties has pleaded it, or the opposite party has admitted its existence and content or has not objected to its application’. In Portugal, choice of law rules are thus not ‘facultative’ unlike in other jurisdictions.

Parties in judicial proceedings are nevertheless bound to cooperate with courts in the establishment of the existence and content of the applicable foreign law. A party relying on foreign law may prove it by different means allowed by the CC concerning evidence, namely documents (such as statements issued by foreign authorities certifying the content of a given law), witnesses and the acceptance by the other party of the content of foreign law as pleaded by the party relying on it. If the parties have failed to plead and prove the applicable foreign law, the court may, on its own motion, determine the measures necessary in order to establish its content. If necessary, it may resort to the mechanisms provided by the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147).

If the court is unable to establish the content of the applicable foreign law, it must look, as determined by art 23(2) CC, for a subsidiary connecting factor, if any, in order to establish the applicable law. As an ultima ratio, the court is allowed by art 348(3) CC to revert to Portuguese law.

IV. Basic principles of private international paw

1. General part

One of the distinctive features of Portuguese private international law is the attention devoted by the CC to the general part of this subject. According to art 15 CC, ‘the scope of application conferred to a law includes only those rules which, due to their content and function in that law, correspond to the legal institution envisaged by the conflicts rule’. A primary, lege fori characterization of the disputed claims or relationships is thus excluded. Instead, a system of ‘selective reference’ to the applicable law is adopted – as opposed to that of an ‘open reference’, according to which all the relevant substantive legal rules of the lex causae are applicable, irrespective of their contents and functions. The CC thus seeks to ensure equal treatment of domestic and foreign laws, since a primary characterization according to the lex fori might involve a prejudgment of the dispute according to the forum’s construction of the facts of the case.

The CC also regulates →renvoi in some detail. Pursuant to art 16 CC, ‘a reference of a conflict rule to a foreign law determines only the application of its internal rules of law, unless otherwise provided’. Other provisions nevertheless allow renvoi as a means of promoting international harmony of decisions. Thus, according to art 17(1) CC, ‘if the conflict of laws rules of the law designated by the Portuguese conflict rule refer to another law and that law considers itself applicable with respect to the particular issue at stake, the internal rules of law of that law apply’. However, this rule does not apply ‘if the law designated by the Portuguese conflict rule is the personal law and the interested party habitually resides in Portuguese territory or in a country whose conflict rules deem applicable the internal law of the state of which the interested party is a citizen’ (art 17(2) CC). →Renvoi is nevertheless allowed in cases concerning guardianship and curatorship, patrimonial relationships between spouses, parental authority, →adoption, and →succession of deceased persons, provided the national law designated by the conflict rules refers to the law of the country of location of the →immovable property and this law deems itself applicable (art 17(3) CC). According to art 18(1) CC, if the conflict rules of the law designated by the Portuguese conflict rule refer back to Portuguese internal law, the latter will apply. Nevertheless, with regard to issues included in the personal status, ‘Portuguese law is only applicable if the interested party habitually resides in Portuguese territory, or if the law of the country of that party’s habitual residence (→Domicile, habitual residence and establishment) also determines the application of Portuguese internal law’ (art 18(2) CC). Favor validitatis and →party autonomy may also prevent renvoi, which is not allowed if it would lead to the invalidity of a juridical act which would otherwise be valid or if the parties have chosen the applicable law (art 19 CC).

Fraus legis (→Evasion of laws (fraus legis)) is regulated in art 21 of the CC, according to which, when applying conflict rules, courts should deem irrelevant any situations of fact or of law created with the fraudulent intent of p. 1avoiding the application of the law that would otherwise be applicable.

The CC deals with public policy in art 22, pursuant to which the substantive rules of the foreign law designated by the conflict rules do not apply if their application offends the Portuguese state’s fundamental principles of international public policy. In such cases, the court will apply the most appropriate rules of the applicable foreign law or, subsidiarily, the rules of Portuguese domestic law.

2. Obligations

Regarding obligations arising out of juridical acts, Portuguese private international law has traditionally sought to ensure, albeit within certain limits, the parties’ freedom to choose the applicable law. Party autonomy is expressly upheld in art 41 CC, according to which obligations arising from a juridical act, as well as its substance, are governed by the law chosen by the parties or which they contemplated. The parties’ choice, however, may only fall upon a law the application of which corresponds to a serious interest or which is connected to one of the elements of the juridical act that may be taken into consideration in private international law. The same basic rule is enshrined in art 6 Law on Insurance Contracts. Additional restrictions are imposed upon party autonomy in consumer contracts by the Law on Standard Contract Terms (Regime Jurídico das Cláusulas Contratuais Gerais approved by Decreto-Lei No 446/85, of 25 October 1985, [1985] DR I série 246/3553, with subsequent amendments; consolidated version available at <www.pgdlisboa.pt>).

Absent choice of the applicable law, art 42 CC determines that the law of the promisor’s habitual residence applies to unilateral juridical acts and that of the parties’ common habitual residence to contracts. Where there is no common residence, the law of the habitual residence of the person providing the benefit applies to gratuitous contracts and the law of the place where the contract was concluded to other forms of contract. In relation to →insurance contracts, art 8 of the Law on Insurance Contracts calls for application of the law that has the closest connection with the contract. This is deemed to be Portuguese law whenever the risk is situated in Portugal or, in the case of personal insurance, when the policyholder has their habitual residence or establishment in that country.

Currently, however, these provisions only apply in matters not covered by the rules of the Hague Agency Convention (Hague Convention of 14 March 1978 on the law applicable to agency, Hague Conference of Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 268) and the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)).

Non-contractual obligations are regulated by arts 43 to 45 CC. These provisions also apply only in matters not covered by the →Rome II Regulation (non-contractual obligations) (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40). This is the case, for example, with non-contractual obligations arising out of violations of privacy or defamation. According to art 45(1) CC, ‘non-contractual liability resulting from a tort, from risk or from lawful conduct is governed by the law of the state where the principal activity causing the injury occurred; if the liability is due to an omission, the law of the place where the liable person should have acted applies’. The lex loci delicti is therefore the primarily applicable law. If, however, the injurer is considered liable by the law of the state where the injury was inflicted but not by the law of the place where the conduct causing the damage occurred, then the former law applies pursuant to art 45(2) CC, provided the injurer should have foreseen the occurrence of an injury in that country as a consequence of his act or omission. Finally, whenever the injurer and the injured have the same →nationality or absent this, the same habitual residence, and were occasionally abroad, then the law of the common nationality or residence applies as determined by art 45(3) CC, without prejudice to the provisions of the local state that must be applied without distinction to all persons. In these cases, the law of the centre of gravity of the relationship between the parties thus displaces the lex loci.

3. p. 1Property

Possession, property (→Property and proprietary rights) and other rights in rem are governed, according to art 46 CC, by the law of the state in whose territory the property is located (the lex rei sitae). In relation to the acquisition or transfer of rights in rem over goods in transit, these are deemed to be located in their country of destination. The constitution and transfer of rights over means of transportation subject to registration are governed by the law of the country where they were registered.

4. Intellectual property

Copyright is governed, according to art 48(1) CC, by the law of the place of the first publication of the work, and for an unpublished work, by the personal law of the author. Industrial property rights are governed, pursuant to art 48(2) CC, by the law of the country where they were created. Both these provisions, however, must be applied without prejudice to special legislation, such as the Copyright and Related Rights Code (Código do Direito de Autor e dos Direitos Conexos, amended and republished as an annex to Lei No 16/2008, of 1 April 2008, [2008] DR I série 64/1894, with subsequent amendments; consolidated version available at <www.pgdlisboa.pt>) and the Industrial Property Code (Código da Propriedade Industrial, amended and republished as an annex to Decreto-Lei No 143/2008, of 25 July 2008, [2008] DR I série 143/4651, with subsequent amendments; consolidated version available at <www.pgdlisboa.pt>), EU acts (eg the Rome II Regulation) and international conventions in force in Portugal (which include the Paris Convention for the Protection of Industrial Property (20 March 1883, with later amendments, 828 UNTS 305) and the Berne Convention for the Protection of Literary and Artistic Works (of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, revised at Brussels on 26 June 1948, revised at Stockholm on 14 July 1967 and revised at Paris on 24 July 1971, 1161 UNTS 3 and amended in 1979 Treaty Doc No 99-27 and 1985, 828 UNTS 221). These sources generally refer to the lex loci protectionis with regard to the law applicable to the existence, content and scope of the protection granted to intellectual property rights (see notably art 5(2) Berne Convention), as well as to the →remedies for their infringement (see eg art 8(1) of the Rome II Regulation). Given the public interests involved in these issues, each state should be able to regulate the exclusive rights for which protection is claimed in its own territory. The reference to the lex originis of intellectual property rights contained in the above provisions of the CC should therefore be interpreted as being restricted to matters falling outside the scope of application of these sources, as is the case with initial ownership of copyright, the submission of which to the law of the country of creation of the work facilitates cross-border licensing and promotes certainty as to the ownership of the right when exercised abroad.

5. Family matters

Consistent with art 49 CC, the capacity to marry or to enter into a prenuptial agreement, as well as the effects of the lack of consent and vices of consent of the parties, are governed in relation to each party by their respective personal law, which in principle is the law of their nationality (art 31(1) CC). However, legal acts concluded in the country of the declarant’s habitual residence, in conformity with that country’s law, are recognized in Portugal, as long as it considers itself applicable (art 31(2) CC). Portuguese private international law thus seeks to protect parties’ reliance on the efficacy of juridical acts validly concluded abroad.

The form of →marriage is in principle governed, according to art 50 CC, by the law of the state where the act is celebrated. However, art 51 CC allows certain deviations to that rule inspired by the idea of favor validitatis. Hence, a marriage in Portugal between two foreigners may be celebrated according to the form prescribed by the national law of either party, before their respective diplomatic or consular agents, as long as that law accords the same authority to Portuguese diplomatic and consular agents. A marriage abroad of two Portuguese citizens or of a Portuguese citizen and a foreigner may be celebrated before the diplomatic or consular agent of the Portuguese state or before a minister of the Catholic Church. Finally, a marriage abroad of two Portuguese citizens or of a Portuguese citizen and a foreigner in accordance with canonical law is considered a Catholic marriage, regardless of the form required by local law for celebration of the marriage.

p. 1Relations between spouses are governed, pursuant to art 52 CC, by their common national law. If the spouses are of different nationalities, the law of their common habitual residence applies, or absent such residence, the law of the country with which the family life is most closely connected. The substance and effects of prenuptial agreements and of the legal or agreed →matrimonial property regime are governed, as stated in art 53 CC, by the national law of the parties at the time of the celebration of the marriage. If the parties are of different nationalities, the law of their common habitual residence at the time of the marriage applies, or absent such residence, the law of the first marital residence. If the applicable law is foreign and one of the spouses is habitually resident in Portuguese territory, they may agree upon application of one of the regimes allowed by the code. Divorce and legal separation (→Divorce and personal separation) are now governed by the →Rome III Regulation (divorce) (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10).

The establishment of a parent–child relationship is regulated by the parent’s personal law at the time the relationship is to be established, as stated in art 56 CC. In the case of a child of a married woman, establishment of that relationship with the father is governed by the common national law of the mother and her husband, or absent such a common national law, by the law of the spouses’ common habitual residence, and absent that, the child’s personal law.

Relations between parents and children are governed, according to art 57 CC, by the common national law of the parents, and absent such common national law, by the law of their common habitual residence. If the parents habitually reside in different states, the child’s personal law applies. If the parent–child relationship is established in relation to only one parent, the personal law of that parent applies, and if one of the parents is deceased, the personal law of the surviving parent applies.

Adoption is in principle governed by the personal law of the adopter, pursuant to art 60 CC. However, if the adoption is made by husband and wife or if the adoptee is the child of the adopter’s spouse, the common national law of the spouses applies, and absent such common national law, the law of their common habitual residence applies; in the absence of such a common residence, the law of the country most closely connected with the family life of the adopters applies.

The law applicable to →maintenance obligations arising from a family relationship is governed by the Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19).

6. Inheritance matters

The →succession of a deceased person is governed, according to art 62 CC, by the personal law of the deceased at the time of death. As mentioned above, personal law is in principle that of a person’s nationality. However, the capacity to make, modify or revoke a disposition upon death, as well as the special form requirements concerning such dispositions due to the declarant’s age, are submitted under art 63 CC to the deceased’s personal law at the time the disposition was made.

Regarding formal requirements (→Formal requirements and validity), art 65(1) CC states that dispositions upon death, as well as their revocation or modification, are valid if they satisfy the requirements of either (i) the law of the place where the act was made, (ii) the personal law of the deceased either at the time when the declaration was made or at the time of death, or (iii) the law referred to by the conflicts rule of the local law. Favor validitatis again inspires a Portuguese →choice of law rule. If, however, the personal law of the deceased at the time when the declaration was made requires observance of a specific form, non-observance of which renders the declaration void or ineffective even if the act was made abroad, then such requirement must be satisfied, according to art 65(2) CC. Portuguese substantive law contains such a requirement, since art 2223 CC declares that a will made by a Portuguese citizen in a foreign country and in compliance with the foreign applicable law, will only be effective in Portugal if a ‘solemn form’ was observed in its making or approval.

When the Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession p. 1and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation (succession)) becomes applicable, these choice of law rules will be replaced by the provisions of that Regulation.

7. Corporations

The Code of Commercial Corporations states in art 3(1) that the personal law of a corporation is that of the state where the ‘main and effective seat’ of its administration is located. According to the same provision, however, a corporation with statutory seat in Portugal may not oppose third party submission to a law other than Portuguese law.

Portuguese doctrine acknowledges that the country of the ‘main and effective seat’ of the administration of a corporation is that in which the main deliberations of its managing bodies are transformed into acts of current management. That country is therefore not of necessity the country where members of those bodies regularly meet. If, for example, the board of directors of a corporation regularly meets in Spain, but its chief executive officer is seated in Portugal, this is likely to be the country of the main and effective seat of the administration.

In any event, there is a presumption in favour of the statutory seat being the same as the main and effective seat of administration. To be sure, this is a rebuttable presumption, but the burden of the proof lies with the party seeking to avail itself of the law of a corporation’s main and effective seat to establish that in a given case the administrative seat does not coincide with the statutory seat.

8. International civil procedure

The basic principle governing the international jurisdiction of Portuguese courts, adopted in art 62(a) CCP, is the coincidence of international and internal jurisdiction. Portuguese courts are therefore internationally competent whenever proceedings may be brought before them according to the domestic rules of territorial jurisdiction. Those courts are also competent, pursuant to art 62(b) CCP, if the fact(s) serving as causa petendi occurred in Portugal and, as stated in art 62(c) CCP, if the right invoked may only become effective through proceedings commenced in Portuguese territory or if there is considerable difficulty in commencing them abroad, as long as there is a ‘ponderous personal or real →connecting factor’ between the subject matter of the dispute and Portuguese law.

Portuguese courts are exclusively competent, according to art 63 CCP, in proceedings concerning (i) rights in rem over immovables situated in Portuguese territory (with the exception of disputes concerning short-term leases of immovables for personal use), (ii) the validity of the constitution or extinction of corporations seated in Portugal, as well as the validity of their organs’ deliberations, (iii) the validity of entries in public registries kept in Portugal, (iv) enforcement measures over immovables situated in Portugal, and (v) the insolvency or revitalization of corporations seated in Portuguese territory.

Choice of the competent court is allowed by art 94 CCP in disputes with connections to more than one legal system under the following conditions: (i) the dispute refers to disposable rights; (ii) the choice is accepted by the designated court; (iii) it is justified by a serious interest; (iv) it does not refer to matters in which Portuguese courts are exclusively competent; and (v) it is set out in writing or confirmed in writing.

These provisions are applicable, according to art 59 CCP, without prejudice to EU regulations and international conventions to which Portugal is party. Thus they should only apply when the defendant is domiciled outside the EES.

The recognition of foreign judgments not covered by international conventions to which Portugal is party or by EU regulations is governed by arts 978 to 985 CCP, which require their previous confirmation by the competent Court of Appeal. For this purpose, it is necessary that (i) no doubts exist as to the authenticity of the document containing the judgment or the intelligibility of the decision, (ii) the judgment has the force of res judicata according to the law of the country where it was rendered, (iii) it was rendered by a foreign court, the competence of which was not provoked by fraud and does not concern subject matter for which the Portuguese courts are exclusively competent, (iv) the same case is not pending before or has not been tried by a Portuguese court, except if it was first brought before a foreign court, (v) the respondent was duly summoned according to the law of the country of origin, and that in the proceedings the adversarial system and p. 1the principle of equity have been observed, and (vi) it contains no decisions the recognition of which leads to a result manifestly incompatible with the principles of Portuguese international →public policy (ordre public). If the judgment was rendered against a Portuguese individual or corporation, its confirmation may also be contested on grounds that the result of the proceedings would have been more favourable to that individual or corporation if the foreign court had applied Portuguese substantive law, and that the issue should have been decided by this law according to Portuguese conflict of law rules.

V. Arbitration

International commercial arbitration is governed by arts 49 to 54 of the Law on Voluntary Arbitration (Lei da Arbitragem Voluntária approved by Lei No 63/2011, of 14 December 2011, [2011] DR I série 238/5276), which closely follows the provisions of the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law). Arbitration is considered international, according to art 49, when ‘international trade interests are at stake’. In an international arbitration, the arbitration agreement is valid as to its substance and the dispute may be submitted to arbitration, pursuant to art 51, if the requirements set out either by the law chosen by the parties to govern the arbitration agreement, by the law applicable to the subject matter of the dispute, or by Portuguese law are met. According to art 52, parties to international arbitration may choose the rules of law to be applied by the arbitrators, unless they have authorized them to decide ex aequo et bono. Absent such a choice, the arbitral tribunal applies ‘the law of the state with which the subject matter of the dispute has the closest connection’. In both cases, the arbitral tribunal must take into consideration the contractual terms agreed by the parties and the relevant trade usages. An award made in Portugal in an international arbitration in which non-Portuguese law was applied to the merits of the dispute may be set aside, as allowed by art 54, ‘if its enforcement in Portugal would lead to a result that is manifestly incompatible with the principles of international public policy’. Articles 55 to 58, which were drafted after the New York Convention, regulate the enforcement in Portugal of foreign arbitral awards. Investment arbitration (→Arbitration, investment) is governed by the ICSID Convention (Washington Convention of 18 March 1965 on the settlement of investment disputes between states and nationals of other states (ICSID), 575 UNTS 159) and the above bilateral investment treaties.

Dário Moura Vicente


  • João Baptista Machado, Lições de Direito Internacional Privado (3rd edn, Almedina 2002);

  • António Ferrer Correia, Lições de Direito Internacional Privado, vol 1 (Almedina 2000);

  • id, ‘Les problèmes de codification en droit international privé’ (1975) 145 Rec. des Cours 57;

  • id, ‘Quelques réflexions sur le système portugais concernant la reconnaissance et l’exécution des jugements étrangers en matière civile et commerciale’, in Droit International et Droit Communautaire. Actes du colloque Paris 5 et 6 avril 1990 (FCG 1991) 135;

  • id, ‘Le principe de l’autonomie du droit international privé dans le système juridique portugais’, in Hans-Joachim Musielak and Klaus Schurig (eds), Festchrift für Gerhard Kegel zum 75. Geburtstag(Kohlhammer 1987) 119;

  • id, ‘Une codification nationale à l’épreuve du principe d’égalité: le Code Civil portugais de 1966 “revisited”’, in Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago, vol 4 (Giuffrè 1987) 63;

  • Maria Helena Brito and Dário Moura Vicente, ‘Portugal’ in Carlos Esplugues, José Luís Iglesias and Guillermo Palao (eds), Application of Foreign Law (Sellier 2011) 301;

  • Luís de Lima Pinheiro, Direito Internacional Privado (Almedina 2002/2009);

  • Luís de Lima Pinheiro, ‘The Methodology and the General Part of the Portuguese Private international law Codification: A Possible Source of Inspiration for the European Legislator?’ (2012/2013) 14 YbPIL 153;

  • Isabel de Magalhães Collaço, ‘L’arbitrage international dans la recente loi portugaise sur l’arbitrage voluntaire: loi nº 31/86, du 29 aoüt 1986: quelques réflexions’, in Droit international et Droit communautaire. Actes du colloque Paris 5 et 6 avril 1990 (FCG 1991) 55;

  • António Marques Santos, ‘Les règles d’application immédiate dans le droit international privé portugais’ in Droit international et Droit communautaire. Actes du colloque Paris 5 et 6 avril 1990 (FCG 1991) 187;

  • Rui Moura Ramos, ‘Aspects récents du droit international privé portugais’ (1988) Rev.crit. DIP 473; id, ‘La protection de la partie contractuelle la plus faible en droit international privé portugais’, in Droit international et Droit communautaire. Actes du colloque Paris 5 et 6 avril 1990 (FCG p. 11991) 97;

  • Dário Moura Vicente, ‘Applicable Law in Voluntary Arbitrations in Portugal’ (1995) 44 ICLQ 179;

  • id, ‘Precontractual Liability in Private international law: a Portuguese Perspective’ (2003) 67 RabelsZ 699;

  • id, ‘Sources and General Principles of Portuguese Private international law: An Outline’ (2007) 9 YbPIL 257;

  • id, ‘Portugal’, (2014) IHCA, supplement 82; id, ‘L’évolution récente du droit de l’arbitrage au Portugal’ (1991) Revue de l’arbitrage, 419;

  • id, La propriété intellectuelle en droit international privé (Martinus Nijhoff 2009);

  • id, ‘Libertés européennes et droit international privé (à la lumière du Traité de Lisbonne)’ (2011) 64 R.H.D.I. 523.