Direito ambiental, arbitragem e resolução alternativa de controvérsias: uma visão conciliadora

Abstract

The present article seeks, through a critical evaluation, to analyze the possibility of submitting environmental issues to methods of alternative dispute resolution, such as arbitration, conciliation and mediation. The main difficulties lie in the relationship between arbitration and environmental matters, since the legal requirements to submit a given dispute to arbitration are the negotiability and the ability to be financially expressed of the rights in discussion. The challenge lies in the fact that the environment is known as a collective or common right, so some understand that environmental interests could not be transacted, and that the environment would not have a financial expression; therefore, not fulfilling those two attributes of objective arbitrability. However, it is important to stress that there is a part of the environment that can be negotiated, and has already been routinely transacted. Also, environmental damage clearly has patrimonial dimensions, which can be financially expressed and monetarily valued. Thus, this article’s central discussion revolves around the possibility of submitting interests involving environmental matters to alternative dispute resolution, contributing to the construction of a conciliatory perspective between alternative dispute resolution methods, particularly arbitration, and environmental issues.