A intervenção do tribunal estadual na obtenção de prova no processo arbitral

Abstract

This study analyses the intervention of the state court in obtaining evidence in the arbitration process. Arbitration is highly valued for its autonomy, flexibility, and capability to provide an effective and specialised resolution of disputes outside the traditional judicial system. However, its efficacy can be compromised by the intrinsic limitation of arbitral tribunals to exert coercive power for the acquisition of evidence, especially from third parties who voluntarily refuse to cooperate. The Article 38.º of VAL contemplates the possibility of state court intervention to address this gap, allowing the parties to request assistance in obtaining evidence essential for the adjudication of the dispute. This mechanism seeks to balance the autonomy of arbitration with procedural effectiveness, ensuring fairness and justice in arbitral decisions. The research conducted provides a detailed analysis of the applicability and effectiveness of judicial intervention in the arbitration process in Portugal, exploring the legal and doctrinal perspectives. Moreover, identify the existing challenges and limitations, elaborating a legislative proposal aimed at improving the interaction between arbitration and the judiciary, promoting a more efficient and equitable dispute resolution. The present dissertation argues that, despite the challenges, cooperation between the arbitral and state instances is fundamental for consolidating arbitration as an effective means of dispute resolution. Therefore, it proposes a legislative review that simplifies the procedures for requesting judicial assistance, by providing for the possibility that the arbitration court may ex officio request the intervention of the state court, the evidence being produced before it (or, at least, in the presence) and the suspension of the arbitration process.

Date of Award	17 Jul 2024
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	André Almeida Martins (Supervisor)