Litigation and Arbitration

The Portuguese Supreme Court of Justice (SCJ) has delivered a Decision uniformizing case law (SCJ Decision nº 2/2021, dated 07.05.2021) in the following sense: “The sale during insolvency proceedings of a mortgaged property, with a lease entered into subsequent to the mortgage, does not make the lessee’s rights expire, in line with the provisions of article 109.3 of the Insolvency and Companies Recovery Code (Código da Insolvência e da Recuperação de Empresas - CIRE), combined with article 1057 of the Civil Code (CC), with the provisions of article 824.2 of the CC not being applicable”.
Investment arbitration has not been without its critics in recent years. Following the Achmea decision, which it has been said drove a stake through the heart of investment arbitration in the European Union, this mechanism has prompted criticism and the Latin American context is not exception.
The Andean Community Court of Justice (Tribunal de Justicia de la Comunidad Andina or TJCA) has clarified the cases in which arbitrators can request a “preliminary interpretation” (interpretación prejudicial) in the arbitration proceedings they conduct, where they are required to establish, create or apply a statutory principle for the interpretation of Andean legislation in order to settle a dispute submitted for arbitration. The TJCA issued this clarification in a decision handed down in proceeding 01-IP-2021, published in the Official Gazette of the Cartagena Agreement (Gaceta Oficial del Acuerdo de Cartagena) of May 6, 2021.