Administrative arbitration in public procurement: a look at Portuguese law

Author:Maria João Mimoso, Maria Do Rosário Anjos
Pages:196-205
SUMMARY

The use of voluntary arbitration to resolve disputes emerging from public procurement is a long-standing reality in Portugal. The Portuguese law allows this way of settling disputes, with limitations, which have been overcome. Traditionally the resolution of this type of litigation resorted to ad hoc arbitration, in accordance with the rules of the Voluntary Arbitration Act, characterized by the... (see full summary)

 
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Administrative arbitration in public procurement:
a look at Portuguese law
Associate professor Maria João MIMOSO1
Assistant professor Maria do Rosário ANJOS2
Abstract
The use of voluntary arbitration to resolve disputes emerging from public
procurement is a long-standing reality in Portugal. The Portuguese law allows this way of
settling disputes, with limitations, which have been overcome. Traditionally the resolution
of this type of litigation resorted to ad hoc arbitration, in accordance with the rules of the
Voluntary Arbitration Act, characterized by the free choice of arbitrators, by the lack of
publicity and transparency of their decisions. Since 2009, in Portugal, institutionalized
administrative arbitration has been increased, creating for the purpose arbitratio n centers
with rules of greater transparency and publicity of its decisions. The recent revision of the
legal regime for public procurement in Portugal, for transposition of European Directives N
º s 2014/23/EU, 2014/24/EU, 2014/25/EU and 2014/55/EU, introduced, in article 476 (2), a
rather innovative regime in this area. This article aims to reflect on the solution now
introduced in the public procurement, its sense, scope and repercussion in the future
evolution of this dispute settlement in conflict with the principles of judicial organization
enshrined in Constitution of the Portuguese Republic.
Keywords: administrative arbitration, institutionalized arbitration, public
procurement, administrative law.
JEL Classification: K23, K41
1. Introduction
In 2008, a Public Contracts Code (CCP) came into force in Portugal (1),
which for the first time brought together a set of provisions that govern the
procedures for the training of most public contracts.
As is clear from the number 1 of the Article 1º, the CCP regulates the
discipline applicable to public procurement and establishes the legal regime
applicable to administrative contracts3.
1 Maria João Mimoso - University Portucalense, Researcher Portucalense Institute for Legal
Research, Portugal, mjmarbitragem@ gmail.com.
2 Maria do Rosário Anjos - University Institute of Maia, Researcher Portucalense Institute for Legal
Research, Portugal, rosario.anjos@ socadvog.com.
3 Vd. Almeida, M. A., (2017) Texto f a Conference about Contratos públicos e contratos
administrativos no novo Código dos Contratos Públicos de Portugal -
https://www.fd.unl.pt/docentes_docs/ma/maa_MA_12940.doc (consulted on 1.11.2018).

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