Scope and limits of the administrative act arbitrability

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

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.