Gathering Evidence in Aid of Foreign Litigation Guide |
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Portugal |
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| (Europe) Firm Morais Leitão, Galvão Teles, Soares Da Silva & Associados Updated 24 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes, Portugal is a party to the Hague Evidence Convention. Besides the Hague Evidence Convention, other relevant legislation regulating this matter includes the following:
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| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes. The appropriate forum for making such requests is the Directorate-General for the Administration of Justice of the Ministry of Justice. Said Directorate then directs the request to the court which handles evidence production itself. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Requests for documentary and testimonial evidence may be made, as well as for the inspection of objects. As for the inquiry of witnesses, please note that the questions to be put or the topics to be addressed should be sent to the requested state. Also, please note that the Portuguese State made a reservation regarding the applicability of Article 23 of the Hague Evidence Convention, meaning it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as foreseen in common law countries. |
| Who bears the burden of showing whether any privileges apply? | If the privilege is provided for in Portuguese law, the Portuguese court itself, assuming it identifies the situation of privilege, will apply that provision. If the privilege is provided for in the foreign law of the requesting state, it may be specified in the Letter of Request but it is not mandatory that it be specified. If it is not, the person from whom the evidence is sought (for instance, a third party in possession of the documents or the person who must testify) must invoke the privilege and the Portuguese State should confirm its existence and applicability before the requesting state. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, there is no need. Nevertheless, if the issue is raised during the proceedings and it refers to the law of the requesting state, the Portuguese State should ask the requesting state to confirm and clarify whether privilege exists and is applicable (see our response to "Who bears the burden of showing whether any privileges apply?"). Furthermore, if the information sought is not allowable in the jurisdiction of the requested state, the request shall be denied. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, they may be conducted remotely (by videoconference, Webex, etc..), namely when the witness does not reside in the same administrative county and currently more broadly whenever there´s a situation related to COVID-19 that prevents the witness from attending in person. In any case, Portuguese courts are becoming increasingly flexible in regard to remote depositions. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | There are only two European instruments that constitute Blocking Statutes:
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| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes, they may (with the limitations foreseen in our response to "Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings?"). |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | As far as we know, on the basis of publicly available data, no such requests in the context of an arbitral proceeding have been dealt with to date by the Portuguese Central Authority. In any case, according to publicly available information from the Hague Conference on Private International Law website, on https://assets.hcch.net/upload/wop/lse_20pt.pdf, the Portuguese Central Authority shares the view of the Permanent Bureau of the Hague Conference in that it may be justified to extend the application of the Hague Evidence Convention to cover arbitration proceedings. If that is the case, our answers wouldn’t differ. |
Gathering Evidence in Aid of Foreign Litigation Guide
Portugal
(Europe) Firm Morais Leitão, Galvão Teles, Soares Da Silva & Associados Updated 24 Mar 2022Yes.
Yes, Portugal is a party to the Hague Evidence Convention. Besides the Hague Evidence Convention, other relevant legislation regulating this matter includes the following:
- Within the territory of the European Union, judicial cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters is governed by Regulation (EC) No 1206/2001 of 28 May 2001.
- In relation to Cape Verde, Angola, Guinea-Bissau, Mozambique and São Tomé and Príncipe, the various Legal and Judicial Cooperation Agreements concerning this matter are indicated below:
- Agreement on Legal and Judicial Cooperation between the Portuguese Republic and the Republic of Cape Verde of 2 December 2003;
- Agreement on Legal and Judicial Cooperation between the Portuguese Republic and the Republic of Angola of 30 August 1995;
- Agreement on Legal Cooperation between the Portuguese Republic and the Republic of Guinea-Bissau of 5 July 1988;
- Agreement on Legal and Judicial Cooperation between the Portuguese Republic and the People's Republic of Mozambique of 12 April 1990;
- Judiciary Agreement between Portugal and S. Tomé and Principe of 5 July 1976.
Yes. The appropriate forum for making such requests is the Directorate-General for the Administration of Justice of the Ministry of Justice. Said Directorate then directs the request to the court which handles evidence production itself.
Requests for documentary and testimonial evidence may be made, as well as for the inspection of objects. As for the inquiry of witnesses, please note that the questions to be put or the topics to be addressed should be sent to the requested state. Also, please note that the Portuguese State made a reservation regarding the applicability of Article 23 of the Hague Evidence Convention, meaning it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as foreseen in common law countries.
If the privilege is provided for in Portuguese law, the Portuguese court itself, assuming it identifies the situation of privilege, will apply that provision. If the privilege is provided for in the foreign law of the requesting state, it may be specified in the Letter of Request but it is not mandatory that it be specified. If it is not, the person from whom the evidence is sought (for instance, a third party in possession of the documents or the person who must testify) must invoke the privilege and the Portuguese State should confirm its existence and applicability before the requesting state.
No, there is no need. Nevertheless, if the issue is raised during the proceedings and it refers to the law of the requesting state, the Portuguese State should ask the requesting state to confirm and clarify whether privilege exists and is applicable (see our response to "Who bears the burden of showing whether any privileges apply?"). Furthermore, if the information sought is not allowable in the jurisdiction of the requested state, the request shall be denied.
Yes, they may be conducted remotely (by videoconference, Webex, etc..), namely when the witness does not reside in the same administrative county and currently more broadly whenever there´s a situation related to COVID-19 that prevents the witness from attending in person. In any case, Portuguese courts are becoming increasingly flexible in regard to remote depositions.
There are only two European instruments that constitute Blocking Statutes:
- Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom - See Article 5(1), which enshrines that no Portuguese national or resident shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex to said Regulation or from actions based thereon or resulting therefrom.
- Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data - See Article 25(1), which enshrines that the EU Member States shall provide that the transfer to a third country of personal data which are undergoing processing or are intended for processing after transfer may take place only if, without prejudice to compliance with the national provisions adopted pursuant to the other provisions of the Directive, the third country in question ensures an adequate level of protection.
Yes, they may (with the limitations foreseen in our response to "Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings?").
As far as we know, on the basis of publicly available data, no such requests in the context of an arbitral proceeding have been dealt with to date by the Portuguese Central Authority. In any case, according to publicly available information from the Hague Conference on Private International Law website, on https://assets.hcch.net/upload/wop/lse_20pt.pdf, the Portuguese Central Authority shares the view of the Permanent Bureau of the Hague Conference in that it may be justified to extend the application of the Hague Evidence Convention to cover arbitration proceedings. If that is the case, our answers wouldn’t differ.