Subjective arbitrability v objective arbitrability This article addresses some of those questions. 19,477/11), providing for the use of arbitration by the state government.ĭespite the major evolution of Brazilian legislation and court precedents, some questions still concern arbitrators and counsel in arbitration proceedings involving the public administration. The State of Minas Gerais, in a pioneer initiative, had already enacted a similar law (Law No. 64,356/19 enacted by the State of São Paulo in 2019. 46,245/18 issued by the State of Rio de Janeiro in 2018 and Decree No.
The amendment confirmed that state entities can submit disputes to arbitration, restating what had already been authorised by several specific laws.įollowing the amendment of the BAA, many Brazilian states have enacted their own laws concerning the inclusion of arbitration agreements in contracts entered into by the state government and its entities, its representation during the procedure, the appointment and independence of arbitrators and standards of publicity and transparency of the arbitration proceedings and arbitration awards. In 2015, a bill reforming the BAA was approved, making important amendments to clarify controversial issues and deal with matters not previously regulated. However, the lack of express provisions in the BAA concerning the use of arbitration by the public administration still raised several questions and concerns, especially regarding the nature of disputes that could be resorted to arbitration. 13,448/2017 (concerning tender for biddings and prorogation of biddings in specific fields). 11,196/05 (which altered the Concessions Law) and 12.766/2012, regarding public-private partnerships) This precedent, issued in 2005, set the path for many others, encouraging legislators to pass specific laws allowing the use of arbitration by the public administration, such as: After unfavourable rulings by state courts in 2002 ( AES v CEEE, State Court of Appeals of Rio Grande do Sul) and 2003 ( Guggenheim Case, State Court of Appeals of Rio de Janeiro), the Superior Court of Justice overturned the decision rendered by the State Court of Rio Grande do Sul in AES v CEEE, finding that the arbitration clause included in the contract between a private company (in this case, AES) and a government-controlled entity (in this case, CEEE) is mandatory. 8,987/95).Ĭourt precedents changed drastically over the years. It was well accepted by scholars that by referring to any person capable of entering into contracts, article 1 of the BAA allowed the use of arbitration by entities from the public administration (eg, the federal, state and city governments and government-owned companies), which are capable of entering contracts relating to freely transferable property rights, as provided by article 175(sole paragraph)(I) and article 37(XXI) of the Constitution, as well as other sets of rules, such as the Concessions Act (Law No. The original wording of article 1 of the BAA already prescribed that any person ‘capable of entering into contracts’ was entitled to make use of arbitration to resolve conflicts regarding ‘freely transferable property rights’.
The debate on the use of arbitration by the public administration started even before the enactment of the BAA, when Brazil’s Supreme Court ruled the notorious Lage case in 1973, confirming and validating an arbitration procedure in which the federal government was sentenced to pay a certain indemnification for the expropriation of rights and assets of a private company, the Lage Corporation. Since then, Brazilian jurisprudence has adopted a pro-arbitration approach, including in cases involving the public administration.
9,307/96) (BAA) in 1996, and in 2001 the Supreme Court recognised the constitutionality of arbitration. The business community embraced arbitration vigorously after the enactment of the Brazilian Arbitration Act (Law No.
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