On April 4th, 2024, the National Land Transport Agency (“ANTT”) issued the Resolution No. 6.040, which amends Resolution No. 5.845/2019, to provide for and regulate the establishment of dispute boards in concession contracts between ANTT and its regulated entities.

The dispute board is a method of resolving disputes that consists of a committee of specialized, independent and impartial professionals, set up by the parties, preferably at the beginning of the contractual relationship, to prevent and resolve conflicts during the execution of the contract.

The board’s main function is to provide advice and assistance to the parties so that they can reach a consensus during the contract; or, if necessary, to issue (non-binding) recommendations or (binding) decisions on the contractual disagreement submitted to it, allowing for a quick and flexible solution so that the contract can continue its normal course.

The main application of dispute boards is in construction contracts, to resolve disagreements over the execution of engineering projects, avoiding as much as possible their paralysis.

The Resolution provides for the establishment of boards to resolve factual and technical disputes about:

(i) the execution and budget of the engineering services and works;

(ii) the adequacy of the works and services to the required contractual parameters;

(iii) the valuation of assets and the calculation of indemnities; and

(iv) the occurrence of events that impact the fulfillment of contractual obligations and the calculation of the financial impacts of non-compliance.

Issues involving the validity, legitimacy and legality of ANTT inspection and regulation acts may not be submitted to the committees.

The concession contract may stipulate that the board it establishes will issue recommendatory or binding decisions; and that the duration of the board may be permanent (throughout the execution of the contract), temporary (limited to a period of validity of the contract) or ad hoc (limited to a specific controversy).

The boards must be made up of:

(i) one member appointed by ANTT;

(ii) a member appointed by the concessionaire; and

(iii) a member chosen by mutual agreement of the other two members, who will act as chairman.

In addition, board members must have “recognized technical training and professional experience compatible with the nature of the contract and the purpose of the board.”

In summary, the new Resolution favors the advancement of extrajudicial dispute resolution methods in administrative contracts and provides legal certainty to the institution and performance of dispute boards within the ANTT.

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