A arbitragem nos contratos de parceria público-privada

Abstract

OLIVEIRA, B. L. N. Arbitration in public-private partnerships. 2012. 155 f. Dissertacao (Mestrado) – Faculdade de Direito, Universidade de Sao Paulo, Sao Paulo, 2012. It is intended to analyze, through the study of doctrinal assessment, case law and the legislative evolution, the compatibility of the use of arbitration in public-private partnership. It can be observed, in the present context, a new attitude of state government concerning the administrative contracts, which, since the end of the twentieth century, comes to valuing equality, participation and consensus in the relationship between public and private partners. The public-private partnerships are inserted in this new context, and they carry innovations in the dealing between the contracting authority and the private contractor hired. It is no coincidence that the federal Law No. 11.079/2004, which brings this modern type of contract, was a pioneer in admitting, under the Public Administration, the resolution of disputes by alternative dispute resolution – ADR processes. Thus, the study is directed to the possibility of arbitration in contracts of partnership, what finds support in the statutory Federal Law No. 11.079/2004. Although the issue can apparently find barriers in the guiding principles of Public Administration (principle of unavailability, the principle of supremacy of public interests, the principle of legality and the principle of publicity) further reflection shows that the arbitration, subject to certain limitations, does not affront such principles. Finally, the Brazilian law, the case law and the public-private partnerships that have been signed recently are, increasingly, turning toward the acceptance of arbitration as an alternative dispute resolution method for resolving disputes in Public Administration.