In August 27, 2019, it was published Law n. 13.867/19 inserting articles 10-A e 10-B in the Decree-law n. 3.365/41 that regulates expropriation for public utility. With such alterations, mediation and/or arbitration can be used as an alternative for the expropriated to have set the amount of its compensation without having to recur to the Judiciary.
The Law highlights such alternative mechanisms for dispute resolution, establishing the simplified negotiating process to be conducted by the public authority. After the notification of the owner with the compensation offer, the expropriated individual can: (i) accept the offer; (ii) reject it expressly or by inertia; (iii) require the instauration of mediation or arbitration proceedings.
In contrast to the private individual, mediation and arbitration are mandatory for the Public Administration, with an absence of a legal provision to establish its refusal. Such absence of legal provision of refusal for the Public Administration aims to guarantee the effectiveness of the proceedings for the private individual, protecting its fundamental right to propriety.
The use of mediation or arbitration is regulated by Law n. 9.307/1996 and by Law n. 13.140/2015 and, according to the article 10-B, the chamber or agency responsible for conducting the proceedings will be chosen by the private individual, if registered with the public administration.
The Law n. 13.867/19 is the first federal law that requires a previous registration of arbitral and media chambers and can become a solution to the controversies of other arbitrations involving the public administration. Nevertheless, the veto to paragraphs 3rd and 5th of article 10-B removed the obligation of the public authorities of advancing the costs of the mediation or arbitration, which can lead to the choosing of least trustworthy chamber, even with registration.
The adoption of alternative mechanisms for dispute resolution for expropriation cases is a positive sign of the advances on administrative consensus in Brazilian Law.
