Publicidade na arbitragem público-privada: quo vadis?

Abstract

The dissertation discusses the issue of transparency in public-private arbitration. Although it originates from and is governed by private law norms, public-private arbitration faces limitations as it incorporates the guiding principles of the democratic system and public law, particularly to ensure oversight of public authorities' actions by regulatory bodies and society. This work aims to examine the transparency of arbitral proceedings involving Public Administration as one of the constraints on the private regime, which limits the parties' broad discretion to agree on the confidentiality of procedural information. To this end, the study distinguishes between administrative transparency, based on Article 37 of the Brazilian Constitution (CR/88), and procedural transparency, as provided for in §3 of Article 2 of Law 9,307/1996. Initially, the study presents a general theory of transparency in arbitrations involving public legal entities, demonstrating the correct interpretation of the transparency requirement under §3 of Article 2 of Law 9,307/1996 and its legal consequences regarding the scope of procedural transparency and the parties responsible for disclosing information. Based on these definitions, the dissertation explores the procedural framework established by Law 9,307/1996, from the submission of the request to initiate arbitration to the final arbitral award, proposing a procedural design for transparency in arbitral proceedings involving Public Administration. Finally, the study concludes by emphasizing the indispensability of disclosing procedural acts and information as a means of public oversight over arbitral proceedings involving Public Administration. Such transparency enables broad scrutiny of the performance of public attorneys involved in the process, the arbitral institutions providing administrative services, and, above all, the arbitrators deciding on issues related to the allocation of public resources and significant public policy matters, such as environmental protection, infrastructure, security, and public health.