Rui Dias

O presente texto corresponde a um excerto do que servirá de base a publicação inserida num volume, em preparação, do Instituto Jurídico da FDUC, na sequência de colóquio internacional que teve lugar em Coimbra em dezembro de 2021. Junto a este texto ficam registadas, breve mas sentidamente, as minhas saudades da Benedita. 1 COM(2022) 71 final.

No presente texto, analisa-se o Acórdão do Tribunal Constitucional que decidiu declarar a inconstitucionalidade, com força obrigatória geral, da interpretação conjugada das normas contidas no artigo 334.º do Código do Trabalho e no artigo 481.º, n.º 2, proémio, do Código das Sociedades Comerciais, na parte em que impede a responsabilidade solidária da sociedade com sede fora de território nacional, em relação de participações recíprocas, de domínio ou de grupo com uma sociedade portuguesa, pelos créditos emergentes da relação de trabalho subordinado estabelecida com esta, ou da sua rutura, por violação do princípio da igualdade, consagrado no artigo 13.º da Constituição.

This paper deals with some questions raised by the arbitration of corporate-law disputes. It is submitted that a sound framing of such questions against the backdrop of corporate law, and a proper manoeuvring of its typical instruments, can deliver good solutions for corporate-law practitioners. By including in the corporate charter, namely, obligations of ancillary contributions by shareholders, clauses limiting the transferability of shareholdings, or special rights, these corporate tools can, from the standpoint of the corporate constituencies, prove efficient vis-à-vis the enforcement (or, quite the opposite, the avoidance) of arbitration.

O direito internacional privado, no dominio dos conflitos de leis como no dos conflitos de jurisdicoes1, nao vive em uma redoma, imune a axiologia normativa, em particular a juridico-constitucional2. Sendo esse um importante corolario de uma evolucao da teoria internacional privatistica do seculo passado, catalisada, como entre nos descreve Moura Ramos, pelos textos constitucionais ulteriores a Segunda Guerra Mundial – que “retomaram o principio da igualdade, concretizando ao mesmo tempo as varias formas de discriminacao que de ai em diante ficavam proibidas”3 –, tal corolario, ainda que indiscutivel e hoje incontrovertido, nao obvia por si so ao surgimento de dificuldades. Essas surgem, designadamente, no momento de fixar o papel e o alcance a reconhecer a autonoma invocacao de fontes normativas que consagrem direitos fundamentais, sejam essas fontes as constituicoes estaduais, os instrumentos normativos supraestaduais ou as convencoes internacionais, que, por sua vez, frequentemen...

The Republic of Angola and the Republic of Mozambique are two of five countries on the African continent with Portuguese as an official language (the others being Cabo Verde, Guinea-Bissau and São Tomé and Príncipe). Regarding their independence from Portugal, they share a relatively similar history. In consequence of the Portuguese Carnation Revolution (Revolução dos Cravos), which was initiated 25 April 1974, Angola became independent on 11 November 1975 and Mozambique on 25 June 1975. In order to understand the private international law of contract in force today in these two countries, it is necessary to take a look at the Portuguese law at the time before Angola and Mozambique obtained theirindependence. Portugal is a civil law country, having codified civil law as well as civil procedure law. The codifications extend to private international law. While the Civil Code (Código Civil) contains rules on the law applicable (some other conflict of law rules can be found in special l...

From the Conclusion: «In this paper, we dedicated ourselves to issues of rulemaking in international jurisdiction. We concentrated on the threshold moment of litigation, in order to assess whether it is suitable and attainable to make national courts of different sovereign states work with each other at the early moment of establishing jurisdiction (jurisdictional cooperation). At the state level, a theoretical approach to jurisdictional rules based on the idea of consent, expressed or implied, is appealing in terms of providing basis for cooperation, which is also in line with the contemporary notions of sovereignty. A distinction between hard and soft tools of jurisdictional cooperation made us realize that the former are widely available in the U.S., which is not the case in the EU. Moreover, the recognition of such tools more easily enables the acceptance of the soft tools, in the framework of jurisdictional discretion, which leads us to the frustrating conclusion that the states who would benefit from them the most more difficultly can justify them according to their own domestic law, namely their domestic procedural law. At the inter-state level, the efforts at the Hague Conference of Private International Law were doomed to failure; the idea of jurisdictional discretion, namely the tremendously different levels of discretion between the U.S. and the E.U., may help grasp the source of the disagreement. At the level of transnational jurisdictional cooperation properly so-called, beyond the state, some rules initially proposed in the Brussels I Review Proposal could be characterized as a step towards an enhancement of jurisdictional discretion, favourable to cooperation, though only one of them passed in the end. In human rights violations by corporations, the absence of a habilitation provision for cooperation by domestic procedural law to the judicature is a hurdle difficult to overcome, though arguments against that view may be put forward. Finally, by grappling with some of the specificities of corporate jurisdictional law we realized there might be cases where, although the general framework is of competition, cooperation can play an important role.»

In June 2013, the Court of Justice of the EU dealt with the compatibility of Portuguese corporate groups law, in particular the liability of the parent company, with EU law. The Court elaborated on what is believed to be an inaccurate account of Portuguese law; ignored the domestic scholarly debate on the subject matter; and consequently disregarded the indispensable coherence of the regulation of groups of companies in its entirety.

Keywords: groups of companies; freedom of establishment; liability of parent company.

From the Conclusion:
«In this paper, we dedicated ourselves to issues of rulemaking in international jurisdiction. We concentrated on the threshold moment of litigation, in order to assess whether it is suitable and attainable to make national courts of different sovereign states work with each other at the early moment of establishing jurisdiction (jurisdictional cooperation). At the state level, a theoretical approach to jurisdictional rules based on the idea of consent, expressed or implied, is appealing in terms of providing basis for cooperation, which is also in line with the contemporary notions of sovereignty. A distinction between hard and soft tools of jurisdictional cooperation made us realize that the former are widely available in the U.S., which is not the case in the EU. Moreover, the recognition of such tools more easily enables the acceptance of the soft tools, in the framework of jurisdictional discretion, which leads us to the frustrating conclusion that the states who would benefit from them the most more difficultly can justify them according to their own domestic law, namely their domestic procedural law. At the inter-state level, the efforts at the Hague Conference of Private International Law were doomed to failure; the idea of jurisdictional discretion, namely the tremendously different levels of discretion between the U.S. and the E.U., may help grasp the source of the disagreement. At the level of transnational jurisdictional cooperation properly so-called, beyond the state, some rules initially proposed in the Brussels I Review Proposal could be characterized as a step towards an enhancement of jurisdictional discretion, favourable to cooperation, though only one of them passed in the end. In human rights violations by corporations, the absence of a habilitation provision for cooperation by domestic procedural law to the judicature is a hurdle difficult to overcome, though arguments against that view may be put forward. Finally, by grappling with some of the specificities of corporate jurisdictional law we realized there might be cases where, although the general framework is of competition, cooperation can play an important role.»

Commentary of Portuguese corporate law, analysing one-by-one the over 500 articles of the Portuguese statute on corporations. This is Volume I (articles 1-84) of a series of seven, published from 2010 to 2014, now in preparation of 2nd editions. The Author was in charge of the comment to Articles 3 (applicable law), 4 (establishment of foreign corporation), 12 (seat), 13 (branches and other establishments), 65 to 70-A (financial report of the corporation, including shareholder resolutions to that respect), 83 (liability of stockholders).

This article tackles some questions of International Company Law under the Portuguese legal system, especially concerning European procedural law, conflict of laws and international commercial arbitration.
In what concerns European procedural law, attention is paid to the jurisdiction rules laid down in the Brussels I Regulation, regarding its scope of application, the fundamental general rule and the exclusive jurisdiction rule applicable to companies (art. 22, nr. 2 of the Regulation).
As far as the conflict-of-law rules are concerned, attention is given to the determination of the law governing the company (lex societatis) under Portuguese law – which traditionally follows a mitigated form of the real seat theory –, within the context of the current developments related to the right of establishment under EU law (from Daily Mail to Cartesio, passing by Centros, Überseering and Inspire Art case-law of the ECJ) and the proposals for the approval of Community-wide unified conflict-of-law rules regarding the company’s personal status.
Still, with respect to conflict-of-law problems, some specific questions are analysed, namely in what measure did the recent 2006 Portuguese Company Law Reform affect the private international law regime of groups of companies in Portuguese Company Law, for it is dubious (and herein denied) whether such substantive rules now apply to foreign (non-European) parent companies of Portuguese subsidiaries. Moreover, some interesting questions arise in the field of the applicability, by means of the conflict-of-law instrument of substitution, of several company law substantive rules to legal realities shaped by foreign law, such as, for instance, the needs (herein also denied) for an intensified supervisory legal regime for Portuguese subsidiaries of foreign parent companies, whenever such parent companies already meet equivalent requirements.
Finally, attention is given to the assessment of the arbitrability of company law disputes, under the pertinent Portuguese statutory rules on international commercial arbitration, with a special look at the possibility of settlement by arbitrators of disputes in which the validity of general meeting resolutions is challenged or the liability of directors is claimed.

In: IDET, Miscelâneas, n.º 5, Almedina, Coimbra, 2008, pp. 41-108

This paper deals with some questions raised by the arbitration of corporate-law disputes. It is submitted that a sound framing of such questions against the backdrop of corporate law, and a proper manoeuvring of its typical instruments, can deliver good solutions for corporate-law practitioners. By including in the corporate charter, namely, obligations of ancillary contributions by shareholders, clauses limiting the transferability of shareholdings, or special rights, these corporate tools can, from the standpoint of the corporate constituencies, prove efficient vis-à-vis the enforcement (or, quite the opposite, the avoidance) of arbitration.

This book corresponds to the dissertation presented in the University of Coimbra, Faculty of Law in October 2006 and publicly discussed in May 2007. It analyses the liability of controlling stockholders vis-à-vis the corporation and other stockholders on the basis of influence exercised over the board of directors. The first part is dedicated to a thorough dogmatic approach of the relevant pieces of statutory law, namely (but not exclusively) Article 83(4) of the Corporations Code. The second part starts with a general overview of the private-international-law characterization problems that may arise to this respect, analyses the ambit of the lex societatis under Portuguese law, and finishes with the discussion of the interplay between the Portuguese statutory rules, including the constitutional principle of equality, and European-Union rules, namely the freedom of establishment of corporations, for the latter to some extent interfere with the interpretation of the former, specially in the context of transnational groups of companies, for which Portuguese law reserves a particular statutory regulation.