Portugal: Enforcement of Foreign Judgments Comparative Guide

Last Updated: 27 September 2019
Article by Paulo von Hafe
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1 Legal and judicial framework

1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?

The Code of Civil Procedure and EU regulations.

1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?

  • EU regulations;
  • the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and its Protocol; and
  • the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?

The court of appeal at the place where the person against which enforcement is sought is domiciled; or, in the case of judgments handed down in EU member states, local courts with the same internal jurisdiction

2 Requirements for enforceability

2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?

In order for a judgment to be recognised and enforced in Portugal, the following criteria must be met:

  • There is no doubt as to the authenticity of the document containing the judgment or the reasoning of the decision;
  • The judgment is considered res judicata under the law of the country in which it was rendered;
  • The jurisdiction of the foreign court was not determined by fraud and the case does not fall within the exclusive competence of the Portuguese courts;
  • The exception of lis pendens or res judicata cannot be invoked regarding a case between the same parties before a Portuguese court, unless it was the foreign court that prevented jurisdiction;
  • The defendant was properly summoned to the proceedings in accordance with the law of the country of the court of origin, and the principles of fair hearing and equality of the parties were observed;
  • Recognition of the judgment would not be manifestly incompatible with the principles of international public order of the Portuguese state.

2.2 Must a foreign judgment be final and binding before it can be enforced?

Yes. Certification is required to confirm that the judgment is considered res judicata under the law of the country in which it was rendered.

2.3 Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?

No. Certification is required to confirm that the judgment is considered res judicata under the law of the country in which it was rendered.

2.4 What is the limitation period for making an application for recognition and enforcement?

There is no limitation period. As long as the original decision remains valid, it may be subject to recognition before the Portuguese courts. However, a general 20-year statute of limitations applies for most claims. Shorter terms are established in specific cases and may constitute valid grounds to challenge recognition.

3 Recognition and enforcement process

3.1 Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?

Yes. Enforcement must always be preceded by an exequatur decision of a Portuguese court.

3.2 What is the formal process for recognition and enforcement?

In order for a foreign judgment to be valid in Portugal, the first step is to initiate the process for recognition via an exequatur decision. Only once an exequatur decision has been issued will it be possible to enforce the foreign judgment in Portugal, whether by way of the initiation of enforcement proceedings or other type of action.

3.3 What documents are required in support of an application for recognition and enforcement?

A certificate of the judgment, issued and certified by the court that issued it, confirming that the judgment is final and duly legalised (under the Apostille Convention or by consular certification).

3.4 What fees are payable for recognition and enforcement?

The fees are determined based on the Rules of Procedural Costs and will depend on the value of the claim. No fees are payable for the recognition of judgments passed by EU member states.

However, because court fees are payable in two instalments, and the second instalment falls due only once a trial date is set – which seldom happens – in practice the court fees are usually half the established rate.

3.5 Is the applicant required to provide security for costs?

The court fees must be paid before the request for recognition is filed.

3.6 How long does it usually take to obtain a declaration of enforceability?

This depends on several factors, including any obstacles to service. If the defendant is summoned quickly, it usually takes between five and nine months.

3.7 Can the applicant seek injunctive relief while the process is ongoing?

Yes, through a cautionary procedure, which may be general or specific (eg, concerning asset attachments or compulsory inventories), as long as the fear of damage to the invoked right may be indicatively proven.

4 Defences

4.1 On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?

The defendant may challenge recognition and enforcement of a foreign judgment if one of the criteria set out in Article 980 of the Code of Civil Procedure is not met, as follows:

  • There is no doubt as to the authenticity of the document containing the judgment or the reasoning of the decision;
  • The judgment is considered res judicata under the law of the country in which it was rendered;
  • The jurisdiction of the foreign court was not determined by fraud and the case does not fall within the exclusive competence of the Portuguese courts;
  • The exception of lis pendens or res judicata cannot be invoked regarding a case between the same parties before a Portuguese court, unless it was the foreign court that prevented jurisdiction;
  • The defendant was properly summoned to the proceedings in accordance with the law of the country of the court of origin, and the principles of fair hearing and equality of the parties were observed;
  • Recognition of the judgment would not be manifestly incompatible with the principles of international public order of the Portuguese state.

4.2 What is the limitation period for filing a challenge?

Once the defendant has been summoned, it has 15 days to file a challenge. The plaintiff may reply to the challenge within 10 days.

4.3 Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?

Not applicable, as the challenge is not independent from the recognition request, so a challenge will always precede an exequatur decision.

5 Court analysis and decision

5.1 Will the court review service of process in the initial proceedings?

Yes. A foreign judgment will be recognised only if the defendant was duly served and the principles of fair hearing and equality between the parties were respected.

5.2 Will the court review the jurisdiction of the foreign court in the initial proceedings?

The Portuguese court will verify that the jurisdiction of the foreign court was not obtain by fraudulent means and that it is not contradicted by exclusive Portuguese jurisdiction.

5.3 Will the court review the foreign judgment for compliance with applicable law and public policy?

Yes. The court will confirm that there is no doubt as to the authenticity of the document containing the judgment or the reasoning of the decision; and that recognition of the judgment would not be manifestly incompatible with the principles of international public order of the Portuguese state.

5.4 Will the court review the merits of the foreign judgment?

No, except insofar as is necessary to verify that the judgment is not incompatible with the principles of international public order of the Portuguese state. If the defendant is a Portuguese citizen or company, the Portuguese court may also verify that, if Portuguese law were found to be the governing law under the Portuguese conflict of laws rules, and were applied accordingly, the decision would not be more favourable to the defendant.

5.5 How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?

A foreign decision can be recognised only if the exception of lis pendens or res judicata cannot be invoked regarding a case between the same parties before a Portuguese court, unless it was the foreign court that prevented jurisdiction Otherwise, this will be considered a dilatory objection and the Portuguese court will not decide on the matter and thus will not recognise the judgment.

5.6 Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?

Yes. The court of its own motion (ex officio) can deny recognition if, upon examining the case or applying knowledge derived from the performance of its duties, it finds that any of the necessary criteria mentioned in questions 2.1, 5.3 and 5.5 are not met.

5.7 Is partial recognition and enforcement possible?

No. The decision concerns recognition of the foreign judgment only; the Portuguese court will not change or adapt the original decision.

5.8 How will the court deal with cost issues (eg, interest, court costs, currency issues)?

The court will not deal with these issues regarding the foreign judgement. If they are part of the judgment, they will be included in the recognition decision. Otherwise, they are not subject to the court's jurisdiction.

6 Appeals

6.1 Can decisions in relation to the recognition and enforcement of foreign judgments be appealed?

Yes. In general, where competence lies with the court of appeal, an appeal may be brought before the Supreme Court of Justice. With regard to the recognition of judgments handed down in EU member states, an appeal may be brought before the court of appeal.

6.2 Can the applicant seek injunctive relief while the appeal is pending?

No specific provision is made for injunctive relief where a decision to refuse recognition is being appealed. Injunctive relief, on general grounds, may be sought if the applicant can prove that the claim invoked would be clearly impaired by the decision refusing recognition.

7 Enforcing the foreign judgment

7.1 Once a declaration of enforceability has been granted, how can the foreign judgment be enforced?

Once an exequatur decision has been granted and has become final, the foreign judgment may be subject to coercive execution through a different procedure or, if it has become valid as if it were a Portuguese decision, before Portuguese public entities (eg, a foreign divorce judgment involving a Portuguese person may, once an exequatur decision has been obtained, serve as grounds to amend the Civil Register).

7.2 Can the foreign judgment be enforced against third parties?

Not directly, since enforcement may be sought only against those who are indicated as parties in the judgment. The sole exception concerns the successors of a deceased third party, whose status must be confirmed by filing valid documentary proof.

8 Trends and predictions

8.1 How would you describe the current enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

No changes are expected in the foreseeable future. Potential changes will probably arise primarily as a result of changes to EU legislation and its application by the courts.

9 Tips and traps

9.1 What are your top tips for smooth recognition and enforcement of foreign judgments, and what potential sticking points would you highlight?

Service of process on the defendant is usually the biggest obstacle and can significantly delay the entire process. Service may be effected through a letter rogatory (through consular request), which is usually time consuming; however, if the current address of the defendant is known, service may be effected by Portuguese registered letter with acknowledgment of receipt, which may be faster.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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