Fixação das regras processuais e exercício da função arbitral na arbitragem voluntária

: poderes de conformação, processo equitativo e sua concretização no plano da produção de prova

Abstract

This thesis focuses on the powers of parties and arbitrators to set forth the procedural rules within Voluntary Arbitration. The evolution of Arbitration Law reveals that the most suitable and efficient solution on procedural rules within arbitral proceedings is not the definition of clearly detailed rules, namely those established by national procedural laws. Party autonomy to agree upon the procedural rules governing their arbitral proceedings is a key feature of arbitration, as well as, if the parties do not exercise such powers, to provide arbitrators discretion to set the procedural rules, in any case always within the due process of law. This system, despite its simple traits, raises several questions. This thesis envisages to analyse the system and provide answers to some of those questions. The study sets off from the framework of the jurisdictional function exercised through the arbitral proceedings, the so-called arbitral function. Once this function is duly characterized, within the scope of party autonomy and due process, this work moves forward to address the powers granted to the parties to set the procedural rules (procedural autonomy) and the powers granted to arbitrators (procedural discretion), as well as their formal and substantial underlying requirements. This procedural conformation is only allowed if it exercised within certain limits, that set the criteria for the legal admissibility and compliance of the procedural rules established by the parties or the arbitrators. In addition to analysing such limits, this thesis considers the consequences of their infringement and the available means to react, whether within the arbitral proceedings or through state courts. Amongst the possibilities of procedural conformation, the definition of rules of evidence is a clear-cut example as to how this system may induce procedural efficiency. Thus, to exemplify this system proper functioning, the powers to determine rules of evidence are further analysed, as well as the possibility to employ means of evidence known to other national legal systems or international arbitration. Through the characterisation of these means of evidence and their advantages and disadvantages, this thesis tries to understand the relevancy and possible utility ofsetting rules of evidence that introduce these means of evidence in arbitrations held in Portugal.

Date of Award	17 Feb 2022
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Rita Xavier (Supervisor)