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

This article analyzes the most controversial points regarding the conclusion of arbitration agreements in the context of contracts governed by the new Bidding and Administrative Government Contracts Law. The Administration’s private contracts are governed by Civil or Commerce and Trade Law. Thus, as the Administration acts in its ius gestionis, it is not granted any prerogatives as a rule. Administrative government contracts are the typical contracts of the Administration, as they are subject to the special rules of public law, with only the rules of private law applying to them in a supplementary manner. Although the Administration occupies a position of supremacy in relation to the private party, Law 14.133/2021 does not contemplate the anomalous competence of the contractor to breach the obligations arising from the agreement. The arbitration agreement is a procedural legal transaction that removes state jurisdiction to settle current or future disputes related to alienable property rights. The arbitration clause is a preventive contractual provision that has the effect of submitting to arbitration future issues that may arise during the performance of the contract. Within the scope of direct public administration, the inclusion of an arbitration clause is generally a compound administrative act. The submission agreement, in or out of court, is a private law contract that aims to submit a dispute relating to an available property right to arbitration. The judgment of convenience and opportunity for the conclusion of the submission agreement, within the scope of the direct Public Administration, must be made directly by the Attorneyship for Government.