Arbitragem e o poder público: possibilidade de cláusula arbitral nos contratos administrativos

Abstract

Taking as starting point an analysis of administrative contracts and the legal institution of arbitration, the aim of this work was to demonstrate the possibility of including arbitration clauses in public contracts, when the conflict object is related to eligible rights of the state. A detailed analysis of the administrative contract was made, being necessary to understand the concept, legal nature, species, and especially to study and analyze the legal principles that abide. On the principles presents a brief history, identifying the right at this point has evolved, until the post-positivist period, lived today, in which everyone must follow, before any law, principles, which are now standards core of the legal system. After the details of the administrative contracts and related principles, arbitration is analyzed front of their characteristics, concept, legal, types of arbitrability and confidentiality. It was then made to join the two legal institutions in order to demonstrate that they are not mutually incompatible and that, accordingly, only merit further evaluation, because the use of arbitration in administrative contracts can not be unlimited. It also presents the minds of scholars, the jurisprudence of the Superior Courts and the Legislature in favor of arbitration in Public Administration. In summary, which aims to demonstrate in this work is the possibility of including arbitration clause in government contracts, whether direct or indirect administration, so that conflicts arising from rights available can be settled through arbitration. A qualitative approach was taken, based on literature, case law and legislative research, starting from the analysis of the differences that hover between jurists for, in the end, provide a personal position on the relevant topic