O dever de independência e imparcialidade dos árbitros em sede de arbitragem administrativa

• Autor(a) principal: Vieira, Inês de Oliveira
• Data de Publicação: 2021
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/141395
• topic: Diretrizes da IBA; Arbitragem administrativa; Dever de independência e imparcialidade; Dever de revelação; Fundamento de recusa; Normação privada; IBA Guidelines; Administrative arbitration; Duty of independence and impartiality; Duty of disclosure; Duty to refuse; Private regulation; Direito

This paper aims at answering two questions: (i) to know what was the role of IBA Guidelines in the implementation of the duty of independence and impartiality of arbitrators under the legislation in place in administrative arbitration before Law 118/2019 entered into force; and (ii) whether the conclusions reached in (i) have undergone some change when Law 118/2019 entered into force, and, if so, to what extent this confers greater or minor guarantees of independence and impartiality of arbitrators in administrative arbitration. For this purpose, we sought to delimit the legal framework that shaped the duty of independence and impartiality of arbitrators in administrative arbitration and to analyze the contributions of private regulation, specifically the IBA Guidelines, to the understanding of the said regime. Then, we have examined the decisions of the judicial and administrative courts on the matter, namely what benefit they have extracted from the IBA Guidelines. From that point, we attempted to determine the role played by IBA Guidelines in the implementation of the duty of independence and impartiality of arbitrators in administrative arbitration, both under the regime in force before the entry into force of Law 118/2019, and the regime implemented by it. We concluded that the IBA Guidelines are relevant (i) to the interpretation of the legal regime and (ii) to determine whether a certain circumstance is likely to constitute an arbitrator in the duty to disclose or determine its removal, conclusions valid both under the regime currently in force and under the regime that preceded it. In addition, we concluded that the regime currently in force confers greater guarantees of independence and impartiality of arbitrators. conclusions are valid both under the regime currently in force and under the regime that preceded it.