Fazenda pública e arbitragem: do contrato ao processo.

Abstract

This paper aims to answer the following question: how does the arbitration procedure with the participation of the Public Power? In seven chapters in which the work is developed all the litigation of the Public Power is analyzed within the context of the arbitration. It should be taken into account that it is not the arbitration that must fit the Public Treasury, but the opposite. The theme is based on Law no. 93.07 / 96 that authorizes legal direct and indirect public administration may use arbitration to settle disputes regarding available property rights. This is a great challenge in view of the legal situation that the Public Power has within the procedural system, with several prerogatives that pose challenges of harmonization and compatibility. In the present study, it is based on a hypothesis if the Public Power exercises typical activities of a private subject and can participate in the arbitration procedure being possible to insert the Public Power in the private system of conflict resolution within the procedural limits established constitutionally. Following the hypothetical deductive model, we will use doctrinal, national and international manifestations besides judicial and arbitral court positions, analyzing the legal system and always seeking to use the binomial: theory and practice. The understanding of the subject is decisive for the Public Power to consolidate itself as an actor in the arbitration procedure.