THE DECISIONS OVER THE USE OF ARBITRATION BY THE STATE, DELIVERED BY THE FEDERAL BUDGETARY COURT, UNDER THE INSTITUTIONAL PERSPECTIVE

Abstract

Arbitration arises as a solution to the problems of slowness of the current judiciary, which is extremely important for the contracts of concession, which by the nature of conflict and diversity of parties that involves, require a quick and specific solution. However, the Budgetary Court adopts the position to prohibit the use of such mechanisms by the State, citing lack of legal authorization and the possibility of arbitration of certain matters, choosing which would be arbitrable or not. It is clear that the decisions of this Court, and it is so since its origin, have strong a political character, leaving aside the expected impartiality and influencing not only the actions of state entities such as regulatory agencies, but also concessions, institute that it is destined to meet social expectations of proper delivery of public services. The purpose of this paper is to clarify that the state can and should use arbitration in concessions, as well to discuss what would be subject to arbitration in concessions, demonstrating that the Court ́s decisions are inaccurate and anachronistic, that they analyze discretionary State choices, flagrantly overstepping the competence and limits defined by the Federal Constitution and they damage the fundamental object of state action, the community. The analysis of specific cases will be undertaken considering the institutional competences of those involved, Budget Courts and regulatory agencies, as well as the systemic effects of their choices, in order to define the limits of the function performed by the first and better institutional modeling.