Angola - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Agostinho Pereira de Miranda is the Senior Partner of the Portuguese law firm Miranda & Associados (“Miranda”).
Sofia Martins is Miranda’s Head of the Litigation & Arbitation practice.
The authors acknowledge the contribution of and express their deepest appreciation to Miranda Partners Jayr Fernandes and Nuno Antunes.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
I. INTRODUCTION: ARBITRATION IN ANGOLA HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
Angola was a Portuguese overseas territory for almost five hundred years. For this reason, the history and legal framework of Arbitration in these countries is coincident until 1975, when Angola became an independent State.
Arbitration in Angola was first governed by Articles 44 to 58 of the 1876 Portuguese Code of Civil Procedure, within the chapter on jurisdiction. Arbitration was subject to the review of state courts.
The 1939 and 1961 Codes of Civil Procedure both still canvassed arbitration as a dispute resolution mechanism subject to the control of state courts, unlike modern commercial arbitration. As a consequence, arbitration practice was almost inexistent in the territory.
Articles 1508 to 1524 of 1961 Code of Civil Procedure remained in force until 2003, when they were replaced by Law 16/03, of 25 July 2003, the Voluntary Arbitration Law (VAL), presently in force. As happens with a significant number of legislative acts enacted after Angola’s independency, said law is largely inspired in the Portuguese legal regime, i.e., the former Portuguese Voluntary Arbitration Law.
Despite this new regime, arbitration in Angola is still not yet in line with the best international arbitration practice. Angola is not a party to the Washington Convention of 1965 on the Settlement of Investment Disputes between States and Nationals of other States (the “Washington Convention”). In regards to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), the Angolan National Assembly approved the accession of the country by means of resolution No. 38/2016. The resolution was approved on 16 June 2016 and published in the official gazette on 12 August 2016.
I. INTRODUCTION: ARBITRATION IN ANGOLA HISTORY AND INFRASTRUCTURE A. History and Current Legislation on Arbitration 1. Historical evolution of law relating to arbitration 2. Current law a) Domestic arbitration law b) International arbitration law 3. Law reform projects 4. Confidentiality and publication of awards a) Privacy of proceedings b) Publication of awards B. Arbitration Infrastructure and Practice in Angola 1. Major arbitration institutions 2. Number of cases and other statistics 3. Development of arbitration compared with litigation II. CURRENT LAW AND PRACTICE A. Arbitration Agreement 1. Types and validity of agreement a) Clauses and submission agreements b) Minimum essential content c) Form requirements d) Incorporation by reference e) Interpretation 2. Enforcing arbitration agreements a) Declaratory actions in court b) Applications to compel or stay arbitration c) Anti-suit and other injunctions 3. Effects on third parties a) Extension of the agreement over third parties b) Other effects 4. Termination and breach B. Doctrine of Separability 1. Statutory provisions 2. Practice and case law C. Jurisdiction 1. Which forum decides jurisdiction 2. Prima facie determination 3. Competence-Competence 4. Interaction of national courts and tribunals D. Arbitrability 1. Notion and functions of arbitrability 2. Applicable law 3. Subjective arbitrability a) Natural persons b) Legal persons c) States and state entities 4. Objective arbitrability a) Examples of restrictions to objective arbitrabilitynat law b) Cases restricting objective arbitrability E. Arbitral Tribunal 1. Status and qualifications of arbitrators a) Number of arbitrators b) Legal status c) Qualifications and accreditation requirements d) Arbitrators’ rights and duties e) Relevant codes of ethics 2. Appointment of arbitrators a) Methods of appointment b) Appointing authorities c) Payment agreements d) Resignation and its consequences 3. Challenge and removal a) Grounds for challenge b) Procedure for challenge c) Removal procedure d) Replacement of arbitrators 4. Arbitrator liability and immunity F. Conducting the Arbitration 1. Law governing procedure a) Determination of law and rules governing procedure b) Notion and role of seat of arbitration c) Methods for selection of seat absent party choice d) Mandatory rules of procedure 2. Conduct of arbitration a) Basic procedural principles b) Party autonomy and arbitrators’ power to determine procedure c) Style and characteristics of the oral hearing d) Documents only arbitrations e) Submissions and notifications f) Deadlines, and methods for their extension g) Legal representation h) Default proceedings 3. Taking of evidence a) Admissibility b) Burden of proof c) Standards of proof d) Evidentiary means – in general e) Documentary evidence and privilege f) Production of documents g) Witnesses h) Tribunal-appointed experts i) Party-appointed experts 4. Interim measures of protection a) Jurisdiction for granting interim measures b) Availability of preliminary or ex parte orders c) Types of measures d) Form of measures e) Security for costs f) Enforcement mechanisms 5. Interaction between national courts and arbitration tribunals a) Court assistance before the arbitration begins b) Court assistance during the arbitration c) Court assistance after the arbitration d) Case law examples of best and worst practices 6. Multiparty, multi-action and multi-contract Arbitration a) Consolidation of arbitrations b) Joinder of third parties c) Parallel and concurrent proceedings 7. Law and rules of law applicable to the merits a) Determining the applicable law and rules b) Party autonomy c) Determination by arbitrators d) Non-national substantive rules, general principles of law and transnational rules e) Mandatory rules 8. Costs a) Arbitration costs b) Legal costs c) Security for costs G. Arbitration Award 1. Types of awards a) Partial awards b) Final awards c) Interim awards d) Consent awards e) Default awards f) Awards and other decisions of the tribunal 2. Form requirements a) Essential content b) Reasons c) Time limits for making award d) Notification to parties and registration 3. Remedies a) Damages b) Specific performance c) Other typical remedies d) Interest 4. Decision making a) Deliberations b) Majority or consensus? c) Dissenting and concurring opinions d) Signature 5. Settlement a) Settlement recorded in an award b) Settlement without an award c) Use of settlement techniques by arbitrators 6. Effects of award a) Effects between parties b) Effects against third parties c) Res judicata 7. Correction, supplementation, and amendment a) Correcting the award b) Additional award c) Interpretation of award H. Challenge and Other Actions against the Award 1. Setting aside a) Grounds b) Time limits c) Procedure d) Limiting judicial review of awards by contract e) Effects of successful challenge 2. Appeal on the merits a) Is it allowed? b) Grounds c) Excluding the right to appeal by agreement III. RECOGNITION AND ENFORCEMENT OF AWARDS A. Domestic Awards 1. Statutory or other regime a) Distinction between recognition and enforcement b) Grounds for refusing recognition and enforcement c) Formal requirement for enforcement of awards d) Enforcement procedure 2. Practice a) Grounds for refusing recognition and enforcement b) Enforcement procedure c) Execution B. Foreign Awards 1. Various regulatory regimes a) Domestic rules b) New York Convention c) Other international conventions d) Court practice applying regimes other than the New York Convention 2. Distinction between recognition and enforcement 3. Application of New York Convention by local courts a) Grounds for refusing recognition and enforcement b) Enforcement procedure c) Public policy as a ground to refuse enforcement d) Examples from practice IV. APPENDICES AND RELEVANT INSTRUMENTS A. National Legislation B. Major Arbitration Institutions C. Cases D. Bibliography