Arbitragem na Administração Pública : a proposição de elementos para um modelo administrativo arbitral dos litígios estatais a partir da adoção dos parâmetros instituídos pela Lei n. 13.448/2017 e pelo Decreto n. 10.025/2019.

Abstract

The theme of this thesis is the proposition of an administrative arbitration model for state disputes based on the adoption of the parameters established by Law 13.448/2017 and Decree 10.025/2019. The study of a public policy focused on creating an administrative arbitration model in the Public Administration, with the aim of expanding access to justice, is fully identified with the line of the research "Instrumental Dimensions of Public Policies", within the PPGD of the University of Santa Cruz do Sul and has an intrinsic scientific relationship with the research area dealt by the advisor of this thesis, Professor Fabiana Marion Spengler, and with the research group Public Policies in Conflict Treatment. From this perspective, this work aims to answer the following problem: does the creation and implementation of an administrative arbitration model, based on an interpretation of Law 13.129/2015, which amended Law 9.307/96 (Arbitration Law), combined with administrative principles and legislation, grounded on the adoption of the parameters established by Law 13.448/2017 and Decree 10.025/2019, correspond to the necessary structural and legal conditions (legal basis, human resources, physical structure, digital mechanisms) identified in the context of Public Administration? The main objective of this research is to investigate whether the creation and implementation of an administrative arbitration model, given an interpretation of Law 13.129/2015, which amended Law 9.307/96 (Arbitration Law), combined with the principles and administrative legislation, based on the adoption of the parameters established by Law 13.448/2017 and Decree 10.025/2019, corresponds to the necessary structural and legal conditions (legal basis, human resources, physical structure, digital mechanisms) identified in the Public Administration context. The methodology used a deductive approach and the procedure used was monographic. The documentary research technique was applied to analyze informative documents, similar to bibliographical research. In order to verify the number of ongoing cases, with the Public Administration as the active or passive subject of the claim, data was collected based on an analysis of the Justice in Numbers report (2022; 2023). Considering the prospection of the form and object of the research, it is possible to conclude that the provision in Article 1 of Law No. 9.307/96 proves to be insufficient to generate an environment and structural and legal conditions necessary for the implementation of an administrative arbitration model which is consistent with the needs and legal-administrative-financial framework of the Public Administration. With regard to expanding access to justice through arbitration, Law 13.448/2017 and Decree 10.025/2019 are essential for dealing with the most controversial issues within Administrative Law, as they adequately deal with legal antinomies and become more permeable to control mechanisms, overcoming in a more incisively manner the obstacles erected around the implementation of the arbitration institute. Allied to these legislative instruments, a series of administrative measures are structured with the intention of giving effect to the aforementioned rules, regardless of the public entity or body where the arbitration will take place, which proves to be perfectly feasible as a response to the research problem and the factual reality of Public Administration.