Arbitragem envolvendo o Poder Público e a solução por equidade: por que o medo?

Abstract

The purpose of this paper is to bring a provocation: is the rule that forbids the judgment of equity in arbitrations involving the Public Administration necessary? Starting from the analysis of equity in its various conceptions, and arbitration as a method of dispute resolution that honors the specialty, flexibility and timeliness, we identify an almost symbiotic relationship between the institutes. In this order of ideas, forbidding the equitable solution for public arbitrations can both undermine what is best in the DNA of arbitration, as well as eliminate an important attraction to the choice of this method by the Administration, which would lose competitiveness when acting as a true player in the market.