A intervenção anômala da União Federal em arbitragensanálise do cabimento e da compatibilidade do instituto com o procedimento arbitral à luz do direito brasileiro

Resumo

Arbitration has become established in Brazil through the regulation contained in Law No. 9,307/1996 ("Arbitration Law" and/or "LARB"), which provides for this alternative method of conflict resolution, which offers greater flexibility and speed to the parties, being based on the autonomy of their will. Through the arbitration agreement, the individuals involved in the dispute may submit their eventual disputes to arbitration, as provided for in the arbitration clause or in the arbitration agreement (Article 3 of LARB) and remove the competence for resolving their controversies from the state jurisdiction. The arbitration procedure has also become attractive to the Public Authorities, in the context of complex administrative contracts, such as those related to concessions in the energy and infrastructure sector. Considering that the arbitration procedure offers greater autonomy to the parties and to the arbitral tribunal, compared to the resolution of conflicts within the scope of judicial proceedings, in addition to other attractive features, the State has begun to choose arbitration as a way of resolving several of its controversies involving private individuals. Although arbitration has been used as a method of conflict resolution by the Public Authorities, there are challenges related to the compatibility of this institution with the peculiarities of Public Administration, such as the "anomalous intervention of the Union," provided for in Law No. 9,469/1997. This type of third-party intervention differs from those typical interventions provided for in the 2015 Code of Civil Procedure ("CPC/2015") and allows the Union to enter cases in which autonomous entities, public foundations, mixed-economy companies, and/or federal public companies are part of the active or passive side, regardless of proof of legal interest for such. On the one hand, there is (i) the public interest, which allows the anomalous intervention of the Union in a given dispute in which it is not a party, nor has it signed an arbitration agreement, while on the other hand, there is (ii) the principles governing the Arbitration Law, such as the need to safeguard the autonomy of the will of the original parties to the conflict, who entered into the contract with the arbitration clause. Given the increasing use of arbitration by the Public Administration, this paper will critically analyze the appropriateness of the Union's anomalous intervention in arbitration proceedings in Brazil.

Ficha do documento

Tipo

Outro

Ano

2025

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38262

Temas

Administração Pública

Palavras-chave

ArbitragemAdministração PúblicaIntervenção anômala da UniãoProcedimentos arbitraisDireito brasileiroArbitrationPublic AdministrationAnomalous intervention by the Federal GovernmentArbitral proceedingsBrazilian lawDireitoArbitragem (Direito administrativo)