ABSTRACT: This paper studies the admissibility of arbitration with the Public Administration. The text begins by approaching the arbitrability in Brazil in its subjective and objective aspects. It is argued that the arbitration is admissible when the Public Administration acts in its ius gestionis. The fall of three paradigms are required to reach that conclusion. Firstly, that the unavailability of the public interest is not necessarily opposed to the availability of the proprietary interest. Secondly, that there is no jurisdictional conflict between the rule establishing the exclusive legal jurisdiction and the arbitration clause. Thirdly, that there is no incompatibility between confidentiality in arbitration and the principle of publicity. The factual proof of admissibility is explained through a case analysis. Finally, the following discussions are proposed: the use of a foreign language in the procedure, in light of the principle of publicity, the existence of a place of arbitration abroad, in face of the principle of immunity of jurisdiction, and the use of a material law from another country, given the principle of legal certainty and public order. The conclusion that is argued is the admissibility of arbitration with the Public Administration on those contexts.
Revista Brasileira de Arbitragem