Administrative arbitration in public procurement: a look at Portuguese law

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 arbitration 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 Nº 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