Arbitrabilidade objetiva e administração pública: quais matérias podem ser arbitradas?

Arbitrations involving Brazilian State Entities still give rise to a fertile field to academic research, so that the present essay intends to examine issues that arise when concretely applying objective arbitrability criteria to assess whether a determined act practiced by a State Entity can or cannot be judged in arbitration. In order to achieve that purpose, the adoption of the dichotomy between acta jure gestionis and acta jure imperii as the criterion to assess objective arbitrability is justified. Based on that, the State prerogatives set forth in art. 104 of Act no. 14.133/2021 are individually examined, as well as their respective provisions in Act no. 13.303/2016, concluding whether each one of them fulfills or not the requirements of objective arbitrability. The analysis encompasses not only legal scholars’ books and essays, but also relevant Brazilian case law on the issue. Finally, the conclusions recall the current status of the Brazilian law on objective arbitrability regarding conflicts involving State Entities and addresses some comments de lege ferenda. State Entities; arbitration; objective arbitrability; state prerrogatives; acta jure gestionis; acta jure imperii.