Scope and limits of the administrative act arbitrability

Author:Bárbara Magalhães Bravo, Fátima Castro Moreira
Pages:6-17
SUMMARY

The material scope of arbitration in administrative matters has recently been considerably enlarged, especially in regards to the administrative act. It was recognized that the Arbitral Tribunal has the power to appreciate the legality of an administrative act. Traditionally, the legality of administrative acts was reserved for state courts. However, the legal incongruity was notorious. Article 180 (1) (c) of the... (see full summary)

 
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STUDIES AND COMMENTS
Scope and limits of the administrative act arbitrability
Assistant professor Bárbara Magalhães BRAVO1
Assistant professor Fátima Castro MOREIRA2
Abstract
The material scope of arbitration in administrative matters has recently been
considerably enlarged, especially in regards to the administrative act. It was recognized that
the Arbitral Tribunal has the power to appreciate the lega lity of an administrative act .
Traditionally, the legality of administrative acts was reserved for state courts. However, the
legal incongruity was notorious. Article 180 (1) (c) of the Code of Proced ure o f the
Administrative Courts (CPTA), 2002, provided that arbitral tribunals could enounce
"matters relating to administrative acts that could be revoked without grounds for invalidity".
We could diagnose two types of legal failures. First, within Administrative Law, it was
incomprehensibly admissible to arbitrate the legality of administrative acts pertaining to the
contractual sphere and exclude all others from the control of arbitration law. The other flaw
suffered by the regime of arbitrability of administrative acts related to the possibility of
arbitrability of tax acts3 and the imposition of strong limitations on the control of the legality
of administrative acts in Administrative Law. The revision of the CPTA in 2015 implied a
change in the legislative paradigm in the matter of administrative arbitration, providing for
the possibility by the arbitral tribunals of assessing the legality of the administrative act, thus
putting an end to a doctrinal dispute about the admissibility of the same. However, a literal
interpretation of the precept would lead us to subsume within th e jurisdiction of the arbitral
tribunals the assessment of the legality of any administrative act. Considering the legislative
scope of the legal prediction enunciated, the present work will have as its objective to answer
three key questions. The first is to assess to what extent the arbitral tribunals may rule on the
merit and legality of the administrative act. The second is to determine whether all
administrative acts are arbitrable. The third concerns the search for a criterion of
arbitrability of the administrative act, especially in matters related to legality.
Keywords: administrative act; arbitral tribunals; arbitrability; administrative law.
JEL Classification: K23, K41
1 Bárbara Magalhães Bravo - Portucalense University; visiting professor at University of Minho, School
of Law; Researcher at IJP Portucalense Institute for Legal Research, Portugal, barbaram@upt.pt.
2 Fátima Castro Moreira - Portucalense University; visiting pro fessor at Nova Lisbon, School of Law;
Researcher at IJP Portucalense Institute for Legal Research, Portugal, fcmoreira@upt.pt.
3 Decreto-Lei 10/2011, 20.01.

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