Government regulates arbitration in the port and transport sectors

This Monday (09/23), the Federal Government published in the Official Gazette Decree N° 10,025, which provides for arbitration to settle disputes involving the federal public administration in the port, road, rail, waterway, and airport transport sectors. The arbitration decree is complementary to the so-called Relicitation Decree (N° 9,957), published on August 7, which includes the friendly termination of the partnership agreement and the conclusion of a new negotiation adjustment for the venture, under new contractual conditions and with new staff. Both rules bring more legal certainty to contracts and the provision of services by reducing the risks of judicialization.

Pursuant to Decree N° 10,025 of September 20, questions may be submitted to arbitration relating to the restoration of the economic and financial balance of the contracts; the calculation of indemnities arising from the termination or transfer of the partnership agreement; and the breach of contractual obligations by any of the parties, including the incidence of their penalties and their calculation. According to the text, preference will be given to arbitration in cases where the divergence is based on eminently technical aspects; and where delay in the final settlement of the dispute may adversely affect the proper provision of the service or the operation of the infrastructure; or inhibit investments considered as priorities.

The accreditation of the arbitral chamber shall be carried out by the Attorney General of the Union and shall depend on the following minimum requirements: being in regular operation as an arbitral chamber for at least three years; have recognized repute, competence, and experience in conducting arbitration proceedings; and have its own regulations, available in Portuguese.

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