The principle of publicity in arbitration proceedings involving public administration

Abstract

The Law 13.129 /15, by amending the Law 9.307/96 (Arbitration Law), buried the doubt regarding the possibility of use of arbitration by the Public Administration as a form of composition of its litigation. The mentioned diploma added the paragraph 1º to the art. 1º of the Arbitration Law, expressly authorizing the use of the arbitration channel by the Public Authorities to settle disputes relating to available patrimonial rights. The normative document was still responsible for inserting paragraph 3 to art. 2 of the Law, providing that arbitration involving the Public Administration shall always be in law and shall respect the principle of publicity. However, as noted by much of the doctrine, the law leaves open the question of how to reconcile arbitration with the principle of publicity in practice. Thus, in view of the gap and the importance of the use of arbitration in the resolution of administrative conflicts, this paper intends to answer the following central questions: 1) How should publicity be guaranteed in the arbitration procedure? 2) In what types of procedure can advertising be mitigated, using, for example, techniques of secrecy or restriction of information based on constitutional foundations such as the protection of the interests of the State or the protection of privacy? 3) Is there a need to regulate the issue and who should do it? 4) Which agents would be responsible for giving effect to the advertising rules in arbitration? 5) What are the consequences of non-compliance with the principle in arbitrations? In order to contribute to the construction of scientific answers to these questions, the study will rely on extensive doctrinal and jurisprudential research, based on the Laws of Arbitration, Access to Information and other pertinent, as well as arbitration chamber orders that deal with theme in Brazil. (AU)