A (DES)NECESSIDADE DE UMA LEI DE ARBITRAGEM ADMINISTRATIVA NO ORDENAMENTO JURÍDICO PORTUGUÊS - O ESTADO DE ARTE

Abstract

In view of the increasing slowness of state justice, insufficient technical and human resources and growing specialization of the matters subject to disputes, in administrative law matters, combined with the advantages inherent to alternative means of resolving disputes, especially arbitration, there is a growing resource to this alternative dispute resolution mechanism. In the Portuguese legal system, the legislation governing administrative arbitration is spread across several diplomas. The institute finds regulation in the Voluntary Arbitration Law, henceforth LAV, a diploma designed and configured for civil and commercial arbitration, which applies in addition to administrative arbitration, particularly with regard to the organization and functioning of arbitration courts. The matter of administrative arbitration is also regulated, in its fundamental aspects, in the CPTA, of arts. 180º to 187º, in the Public Contracts Code (art. 476 of the CCP) and in the legal regime of tax arbitration, by remission of art. 181º nº4 of the CPTA. Given the lack of a single normative source regulating administrative arbitration, we are faced with the application of solutions specific to private arbitration to Administrative Law arbitration, which are not in line with the principles applicable in the context of this branch of Law. In addition, there are marked inconsistencies between the different solutions provided for in the different diplomas. In this text, we propose to analyze the current solutions in some matters, identifying the main application problems, gaps, as well as some issues that require specific treatment from an administrative legal point of view, concluding that there is a possible need for a voluntary arbitration law administrative.