Extinção de contrato de concessão por rescisãoé possível contratualizar?

Resumo

The Concession Law established a formula for the termination of a concession agreement that has challenged administrative lawyers due to the factors that comprise it: the concessionaire has the right to seek in courts the termination of the concession agreement in the event of default by the grantor regarding contract clauses; however, the services granted cannot be interrupted or paralyzed until the court decision concerning the termination becomes final. Default by the grantor, continuity of the public services and court intervention comprehended in a sole command, which is usually reproduced as a contractual clause in all spheres of the public administration entering ordinary, administrative and sponsored concession agreements. The proposal of this thesis is to explore the limits and possibilities of the agreement – or of the autonomous normative production – in order to include in the agreement the extinction of concession by termination. Based on the general formula established by the legislator, this study addresses the movements of the heteronomous normative production around the concession termination conveyed by sectorial laws and special laws and their respective regulations, reviewing further contributions of legal literature proposals of increment in the quality of public contracts. This work presents concrete cases of concessions exposed to extinction by legal termination in order to illustrate the practical difficulties deriving from the application of the termination general formula unaccompanied by the contractual specification leading to a bet of the work on the dissemination of the termination by arbitration. In the end, there are recommendations on how to proceed based on the research results (laws, regulations, concession agreements held, literature proposals and legal cases), exploring the space reserved by the legislator for contractualizing the extinction of the concession by termination.

Ficha do documento

Tipo

Dissertação

Ano

2021

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/30162

Temas

Gestão PúblicaConcessõesAdministração Pública

Palavras-chave

ConcessionExtinction by terminationContractualizingConcessãoExtinção por rescisãoContratualizaçãoRescisão judicialRescisão arbitralDireitoConcessões administrativasRescisão (Direito)Contratos administrativos