Redação das cláusulas compromissórias em contratos administrativos: desafios de segurança jurídica e efetividade do uso da arbitragem na administração pública

Abstract

This study analyzes the drafting of arbitration clauses in administrative contracts as a central element for the effectiveness and legal certainty of arbitration involving the Public Administration. The research problem lies in the persistence of ambiguities, technical gaps, and drafting incompatibilities that compromise the validity of the arbitration agreement and generate risks to contractual execution, exacerbated by the absence of a systematized national legislative framework that uniformly regulates arbitration in administrative contracts—particularly in the context of the legislative consolidation of public arbitration following Law No. 13,129/2015. This is a qualitative study of a legal-dogmatic nature, developed through bibliographic, documentary, and case law research, complemented by indirect empirical analysis of institutional data published by arbitral chambers and by state and municipal regulatory frameworks. The adopted method is deductive, proceeding from the theoretical and normative construction of public arbitration to the critical analysis of arbitration clauses effectively used by the Administration, a choice justified by the need to correlate dogmatic foundations, legal limits, and institutional practices. The methodology combines doctrinal review, examination of higher court jurisprudence, sectoral normative analysis, and empirical investigation of arbitral proceedings administered by specialized chambers. The results demonstrate that arbitration is fully compatible with the administrative legal regime when limited to disposable patrimonial rights, but that its effectiveness depends on the clear and comprehensive drafting of the arbitration clause, the proper definition of the arbitral subject matter, compliance with publicity requirements, and the adoption of institutional practices that reduce uncertainties and parallel litigation. It is concluded that the technical drafting of these clauses constitutes an indispensable requirement for the rationality,efficiency, and predictability of public contracts, being essential to promote governance, reduce judicialization, and strengthen trust between the State and private parties. The study proves relevant by offering practical parameters for normative and institutional improvement, contributing to the responsible use of arbitration by the Public Administration.