Portuguese Law

Do different types of procedure affect the degree of politicization of constitutional courts in European democracies? We argue that they do and we find evidence that supports this assumption in our analysis of the German, Bulgarian and Portuguese courts. We show that two features of the types of procedure lead to a higher politicization of court decisions: lower legal requirements on the part of the applicants and broader opportunities for them to weaken political opponents. This kind of moderating effect appears equally for all groups of applicants.

When the Legal Affairs Committee of the European Parliament commissioned the authors of this article, along with other members of the Brunel Centre for the Study of Arbitration and Cross-Border Investment, to undertake a study of the “Legal Instruments and Practice of Arbitration across the EU”, it was decided that a central platform of that Study should be large-scale empirical research dedicated to identifying the realities of arbitral practice in each of the States in the European Union plus Switzerland.

This empirical research took the form of a Survey of arbitration practitioners across the European Union and Switzerland, consisting of 95 questions, and addressing such diverse topics as the backgrounds of arbitration practitioners, the procedures used in the arbitrations in which respondents had been involved, the considerations important for recommending arbitration and for selecting an arbitrator, and environmental questions such as the attitude of judges towards arbitration and the desirability of action by the European Union to harmonize arbitration law across the European Union.

The present article reports on and discusses the results of this Survey with respect to six States collectively described here as constituting “Southern Europe”: Cyprus, Greece, Italy, Malta, Portugal and Spain. While these States share an obvious geographic proximity, it is important to emphasize that the decision to collect them into a single article was made not just on this geographic basis, but also due to certain cultural and legal elements shared by these States that might be thought to impact on local arbitral practice.

The goal of this article is not merely to report the results of the Survey, but is instead to use the results of the Survey, interpreted in the light of the additional information developed in the course of the Study, to generate a picture of arbitration in each of these States. In this way the article seeks to deviate from the norm of concentration upon elite international arbitration practice, in order to provide important new information on the realities of and variations that exist in the practice of arbitration across Southern Europe. Recognizing and appreciating this reality of diversity provides an important foundation for enriching the academic study of arbitration beyond this single article and these six States, moving such study away from an exclusive focus on elite arbitral practice, towards an appreciation of the significant variations that do indeed often characterize the reality of arbitration around the world.

This article examines the influence of the types of procedure on the degree of politicization of European constitutional courts. Based on an analysis of the German, Bulgarian and Portuguese cases, we show that the lower the legal requirements on the part of the applicants and the broader their opportunities to weaken political opponents, the higher is the degree of politicization of the court decisions. This moderating effect appears equally for all groups of applicants.

Índices da Colecção de Leis Manuscritas da Biblioteca da Faculdade de Direito da Universidade de Lisboa (25 de Outubro de 1405 – 29 de Dezembro de 1578), coord. Isabel Graes, índices de Isabel Graes, Diogo Castro e Thiago Graes, sumários de Pedro Pinto, Lisboa, Associação Académica da Faculdade de Direito de Lisboa, 2021