Pontos polêmicos relativos à utilização da arbitragem no âmbito das contratações regidas pela nova Lei de Licitações

This article analyzes the most controversial points regarding the use of arbitration in contracts governed by the new Public Procurement and Administrative Contracts Law. The public interest, whose holder is the State, corresponds to the set of intergenerational interests that people particularly have as participants in society. Given its instrumental nature, the Public Administration has the duty-power to manage, preserve and protect the primary interest, in accordance with the public purpose laid down by law, and cannot dispose of it. The unavailability of the public interest will be ensured when the state’s assets and rights that have a patrimonial or financial function are exploited as intensively as possible, or negotiated. Subjective arbitrability is confused with the capacity to contract, which enables the state to use arbitral jurisdiction. With regard to objective arbitrability, the legal system has limited the use of arbitral jurisdiction to matters relating to available property rights. Due to its inherent characteristics, arbitral jurisdiction is generally suitable for settling complex disputes with a high economic value, which are unusual for the State-judge. In addition to these innate characteristics of arbitration, the Public Administration has to consider, on a case-by-case basis, the size of the contract, the complexity of the object and the conditions peculiar to the selection of bidders and their contracting, in order to reach a conclusion about the appropriateness or inappropriateness of adopting arbitral jurisdiction.