Arbitragem e administração pública: a participação de intervenientes anômalos em arbitragens para recomposição de equilíbrio econômico-financeiro de contratos de concessão

Abstract

The present work seeks to analyze the great issue of arbitration with public administration, focusing on the participation and role of anomalous actors in arbitration to restore the economic financial balance in concession contracts. In this sense, with the increasing use of public-private partnerships to foster public services and investments in infrastructure, there is a consequent increase in the prediction of alternative dispute resolutions, including arbitration. Thus, based on case law and legal writing analyses, it seeks to present the authorizing regulations of subjective arbitrability with Public Administration, which are the criteria for its objective arbitrability, as well as structuring principles on the procedure. With the thematic approach in the arbitrations for the restoration of the economic-financial balance in concession contracts, this work has the purpose to analyze the contrast between the availability of the rights involved, in the face of collective interests, especially considering the economic effects on the assets of the entities involved, which authorizes its participation as an anomalous intervener, pursuant to art. 5 of Law No. 9,469/1997. Therefore, the work seeks to answer (i) whether there are requirements for the acceptance of this modality of intervening; (ii) what are the powers of this third party in the arbitration procedure and (iii) what are the advantages or disadvantages of this participation