Arbitrabilidade dos litígios com empresas estatais à luz da jurisprudência do TCU e do STJ

Abstract

The objective of this paper is to provide an analysis concerning some criteria adopted by Brazilian courts in matters of arbitrability of disputes involving state-owned companies. To this end, I initially examine the characteristics of the legal regime of state-owned companies. Then, the evolution of the jurisprudence of the Federal Court of Accounts and the Superior Court of Justice is examined, with the aim of identifying the main controversial issues regarding the use of arbitration by public agencies. In the last part, the article focuses on three criteria adopted by Brazilian case law to deny the arbitrability of disputes with state-owned companies: a) the distinction between state-owned companies providing public services and those exploiting economic activities; b) the discrimination between main and support activities of the state-owned companies; and c) the extension of the statutory arbitration clause to the controlling shareholder of the state-owned company. In the end, it is concluded that arbitration is an adequate and necessary instrument for the persecution of public interests that legitimizes the State’s entrepreneurship, although its consolidation still demands the overcoming of traditional dogmas of the Brazilian administrative law that are incompatible with the business ends of the state-owned companies. Arbitration; Public Administration; state-owned companies; arbitrability.