Macau litigation guide
Luís Pinto
Jorge Neto Valente Advogados
Tel: +853 2838 2222; Fax: +853 2838 2222; Website: www.jnvlegal.com
In recent years, Macau has become a premier gaming and tourist destination for travelers from all over the world. With the liberalisation of the gaming sector in 2004, the economy of Macau became a magnet for substantial foreign direct investment. The principal sectors to benefit were the real estate, tourism, hospitality and gaming industries, as well as all the attendant and related support services. Being a UNESCO World Heritage Site, Macau also attracts a very significant number of tourists looking to explore its rich mixture of history and culture.
Portugal ruled Macau for almost 500 years, until sovereignty was handed over to the PRC on December 19 1999. Under its Basic Law, Macau has retained its continental law system and enjoys a high degree of legislative, political and judicial autonomy, being established as a separate jurisdiction from the PRC.
Litigation in Macau is undertaken by lawyers. During the last few years, the court system has been expanded and remodeled so as to accommodate the needs of a rapidly growing population and increasingly complex economy.
Macau has a three-tier judicial system. Firstly there is the First Instance Court, which is comprised of one specialised tribunal (for matters related to administrative law), one small claims tribunal (to hear civil claims of up to 50,000 patacas (approximately US$6,250)) and a further six tribunals divided into two groups of three (one group handling civil cases and the other criminal proceedings).
Secondly there is the Second Instance Court and thirdly the Last Instance Court (these act as courts of appeal, handling all types of cases). Under the law these courts of appeal can also act as courts of first instance to hear some types of litigation, such as appeals brought against administrative decisions taken by members of the Government.
During 2009 and 2010, the number of judges in the courts of first and second instance will be increased. It is also predicted that new specialised tribunals will be created within the First Instance Court to deal with litigation involving labour disputes and family matters.
Court judgments and arbitration awards issued in foreign jurisdictions are enforceable in Macau after confirmation by the Second Instance Court. In March 2006, Macau and the Central Government of the PRC agreed on a protocol. This established a mechanism for mutual confirmation of court judgments on civil and commercial matters, including civil claims filed in criminal cases. In November 2007, a similar agreement was reached in respect of arbitration awards. Given the absence of a similar mechanism for court judgments or arbitration awards issued in Hong Kong, these are treated by the courts in Macau as if issued by a foreign jurisdiction.
Regardless of where they originate, the confirmation of court judgments and arbitration awards issued outside of Macau is always subject to the satisfaction of some prerequisites. These include:
• that there is no doubt as to the authenticity of the documents containing the foreign judgment or award,
• the courts of Macau do not have exclusive jurisdiction on the matter of the judgment or award being confirmed (such as those deciding on rights over real property located in Macau or bankruptcy of Macau-registered companies),
• the respondent or defendant was given opportunity to present a defense,
• the judgment or award is lawful, final and conclusive in the place rendered, and
• the enforcement of the judgment or award does not breach Macau rules of public policy.
Arbitration
Arbitration in Macau is governed by an international arbitration law and a domestic arbitration law. The former follows closely the UNCITRAL Model Law. There are four authorised arbitration centres in Macau. Two are limited to claims valued at no more than 50,000 patacas: one organised under the Macau Consumer Council (for matters involving consumer rights) and another under the Macau Monetary Authority (to hear cases related to disputes over insurance).
Two other arbitration centres exist to resolve commercial and civil disputes without limitation on the amount claimed – one set up by the Macau World Trade Centre and another by the Macau Lawyers Association. Certification of an arbitration award issued outside of Macau is subject to Macau law allowing the same dispute to be resolved by arbitration. Matters involving inheritance, rights over real property, family and criminal felonies, among others, cannot be submitted to arbitration.