Os critérios de arbitrabilidade na arbitragem tributária

• Autor(a) principal: Filho, Bertrand de Araújo Asfora
• Data de Publicação: 2022
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/148609
• topic: Arbitragem tributária; Critérios de arbitrabilidade; Teoria dos sistemas sociais de Luhmann; Tax arbitration; Arbitrability criteria; Luhmann's social systems theory; Direito

It is well known that the world law is undergoing major transformations aimed at its greater efficiency in the face of disputes involving society. So alternative methods of conflict resolution are emerging, which tend to give greater speed, besides protecting the interests of the parties involved during the legal imbroglio. In the case of tax law, tax arbitration arises as an expectation of solving, at least in part, the slowness of the judiciary, offering greater legal certainty to the parties, due to the specialty of the arbitrators who provide more technical decisions. These appearances of new solutions in the legal field can be explained through Luhmann's theory of social systems, explained through the autopoiesis of the legal system and exemplified through a cycle in this study. In other words, the internal environment of the law can alone generate and solve its complexities, always with the effective participation of society and through the irritations of the external environment. We can argue that tax arbitration itself is a result of a complexity generated by and driven by the internal environment. However, it is worth arguing that the lack of a conceptual criterion for tax arbitration in Portugal, a world reference country in the application of tax arbitration, in which the legislature chose to refrain from the responsibility of listing a conceptual criterion for tax arbitration, thus leaving great room for discussion of the most appropriate objective criterion for tax arbitration, is a new complexity, and thus, liable to discussion. With this, this study aims to discuss the possibility of applying some criteria that can be used in tax arbitration and demonstrate the relationship between arbitrability criteria and Luhmann's social systems theory.