ABSTRACT: The Law nº 63/2011 contains the new discipline in volunteer arbitration in Portugal and inserted numerous changes in the established system, including the issue of arbiter liability. Beyond maintaining the liability rules that existed previously, the legislator established, in the 9th article, n. 4, that the "arbiters cannot be held liable for damage arising from decisions they make, except in the cases in which the invested judges may be held liable", and, in the 9th article, n. 5, that "the liability of the arbiters foreseen in the anterior number has its place only between parts". Everything indicates, then, that the arbiters, on one side, could only be claimed in the same hypothesis of liability fixed for the judges - that reminds us of the precepts in the Law nº 67/2007, from December 31st, which approved the general discipline of State civil non contractual liability for damages due to the exercise of their functions. On the other side, those same arbiters could only be claimed directly by the parts, contradicting the personal non-liability rules of the magistrates and pushing away the existence of liability and, thus, of rights of recovery by part of the State, equally fixed by the Law nº 67/2007. It is in this context that the present works emerges, which aims to analyze the arbiters liability in light of the new system incorporated in the Portuguese legal body.
Revista Brasileira de Arbitragem