The conclusions presented on 13 July by the Advocate-General of the European Court of Justice regarding the compatibility of the limitation of the retroactivity of the annulment of floor clauses with EU law seem not to have entirely cleared up the matter. And not merely because, as is well known, such conclusions are not binding on the Supreme Court, which ultimately will have the last word, but especially because the conclusions cast a certain shadow over what transpires in individual cases.
In 2011, Portugal signed a Memorandum of Understanding (MoU) with the Troika and a review of the Portuguese Civil Procedure Code (CPC) was among the measures agreed. The main objectives of this was to speed up proceedings and reduce the number of proceedings pending in court. Additionally, the opportunity was also used to eliminate some deficiencies of the previous CPC, which resulted from various amendments it had been subject to since 1961. The new CPC was approved by Law no. 41/2013, of 26 June, which entered into force on September 1st, 2013.
Over the last decade, Portugal has progressively promoted mediation as a means of alternative dispute resolution by adopting specific legislation for different subject matters, such as family, labour and criminal law. Civil and commercial mediation has been used mostly for small claims submitted to specialized courts called Julgados de Paz.
Last September the Portuguese Government submitted to Parliament a proposal for a new Arbitration Law to replace the 1986 law currently in force. This was made as a result of a measure contained in the Memorandum of Understanding with the international Troika arising from Portugal’s bailout, as well as the present Government’s program.
The growing sophistication of many commercial agreements, often involving multinational companies and assets or parties across often multiple borders, means that the disputes that arise out of them can be alarmingly complex. Spain’s new Civil Procedural Law and the creation of dedicated Commercial Courts has helped increase the understanding and awareness of the specificities of litigation and arbitration proceedings, but it has also meant a demand for the better analysis and presentation of cases and the evidence supporting or defending claims. In this respect, the targeted and efficient use of expert witnesses and forensic analysis can prove crucial both in determining the strategy of a case to be followed, the forum in which to pursue it, and the eventual outcome.