A arbitragem como alternativa para diminuir a morosidade do sistema judiciário brasileiro

This thesis is about arbitration, a form of alternative dispute resolution, as a solution for the slowness of the Brazilian Judiciary. The paper starts with an approach of the fundamental rights, highlighting their positivation, important to distinguish them from human rights, the four dimensions of the fundamental rights and, lastly, the analysis of their features, emphasizing their characters of complementarity and universality. After, it starts to discourse about the “access to Justice”, an important fundamental right, and, to delimitate the role of the Judiciary and the problems related to solve cases in a reasonable amount of time. Next, it exposes other alternative forms of dispute resolutions that, like the arbitration, can help to the concretization of a faster and more effective Justice. Then, it discusses the historical evolution of the arbitration in Brazil, highlighting the contemporary features of the institute, which were more visible with the ratification of the New York Convention and the promulgation of Law nº 9.307/1996. In addition, it analyses the possible changes that will come with the New Brazilian Procedure Law Code and the PL 7.108/2014, intended to change the current Arbitration Law. It also explains the main arbitration attributes, describing the peculiarities of the arbitral convention, the arbitrator role, and the arbitral award aspects. At least, it lists the main reasons someone should choose arbitration instead the Judiciary, considering the Brazilian Courts reality.

O princípio da confidencialidade na mediação em matéria civil e comercial

The purpose of the following study is to analyze the relevance of the principle of confidentiality concerning mediation on civil and commercial matters developed in Portugal. We will, essentially, try to determine just how pivotal is this principle and how it affects the effectiveness of that method of alternative dispute resolution. We believe it is fundamental to understand the true extent of this principle and its goals, emphasizing the protection given to those who decide to resort to mediation and its impact on this process. For this dissertation, we have based our analysis on the interpretation of the set rules assembled by Law nr 29/2013, April 19th, while combining it with data gathered from other laws and regulations that had also addressed mediation. Furthermore, given the fact that this subject has been regulated by Directive 2008/52/EC, we deem pertinent to include references to other European mediation regulations, namely from Germany, Spain and France. With this study, we have established that, even though the Portuguese mediation law is based on a European Directive, we have determined a more restrictive regulation for the principle of confidentiality. We have concluded that the rules regarding this principle try to preserve, above all, the trust and honesty established during the course of the mediation, while restricting the possibility of using the information disclosed during these sessions on other cases. Additionally, we believe confidentiality is such a distinctive and relevant feature that its legal framework leads us to deem it as a true obstacle to the parties’ private autonomy and their power to determine how the mediation should be carried out.

Conselho de Resolução de Litígios

The scope of the following study is to present an alternative and preventive dispute resolution method known as Dispute Resolution Board. The Dispute Resolution Board mechanism is included in construction contracts to support project participants in avoiding and resolving disputes. Over the years the construction industry dealt with the resolution of claims and disputes through several methods. One of the most successful and lasting is the Dispute Resolution Board. A Dispute Resolution Board is a board of impartial professionals formed at the start of the project to follow construction progress, prevent arising disputes, and assist in the resolution of disputes during the project. When a dispute arises the Board meets with the parties to settle this dispute. The recommendation of this Board is non-binding for the parties. In Portugal there is no experience with this form of conciliation.

Conselho de Resolução de Litígios

The scope of the following study is to present an alternative and preventive dispute resolution method known as Dispute Resolution Board. The Dispute Resolution Board mechanism is included in construction contracts to support project participants in avoiding and resolving disputes. Over the years the construction industry dealt with the resolution of claims and disputes through several methods. One of the most successful and lasting is the Dispute Resolution Board. A Dispute Resolution Board is a board of impartial professionals formed at the start of the project to follow construction progress, prevent arising disputes, and assist in the resolution of disputes during the project. When a dispute arises the Board meets with the parties to settle this dispute. The recommendation of this Board is non-binding for the parties. In Portugal there is no experience with this form of conciliation.

O contrato de prestação de serviços de fornecimento de água

The theme of thid thesis is the water supply services contract. The texto starts with an analysis of the service, aimed at clarifying what is the system organization and the principles applicable to this essential public service. Then the water supply services contract is analyzed according to the law on essential public services. Subsequently, connections are established with other applicable laws and the differing doctrinal and jurisprudential perspectives are presented. The thesis ends with an outlook on the dispute resolution mechanisms at the users’ disposal.

As conversas informais na reconstituição

The theme of thid thesis is the water supply services contract. The texto starts with an analysis of the service, aimed at clarifying what is the system organization and the principles applicable to this essential public service. Then the water supply services contract is analyzed according to the law on essential public services. Subsequently, connections are established with other applicable laws and the differing doctrinal and jurisprudential perspectives are presented. The thesis ends with an outlook on the dispute resolution mechanisms at the users’ disposal.

Modellus: Learning Physics with Mathematical Modelling

Tese de doutoramento em Ciências da Educação, área de Teoria Curricular e Ensino das Ciências

Saúde mental, qualidade de vida e acesso aos cuidados de saúde na comunidade brasileira de Lisboa

Introdução: A utilização de serviços de saúde tem implicações importantes para o estado de saúde das populações. As políticas de imigração adoptadas nos países de destino têm influência no estado de saúde das comunidades imigrantes. Políticas que limitam o acesso de imigrantes aos cuidados de saúde aumentarão a vulnerabilidade e os riscos na saúde. Apesar da imigração promover uma série de rupturas na vida do sujeito, migrar, por si só, não pode ser considerado como factor de risco no âmbito da saúde e da saúde mental. O peso dos determinantes socioeconómicos tem ganho relevância no estudo das migrações, estado de saúde geral e mental. Isto porque, em geral, os imigrantes estão em situação mais precária do que a população autóctone. O estatuto socioeconómico baixo, as condições precárias de habitação e de trabalho, a falta de suporte social e a irregularidade jurídica são indicadores de risco acrescido para a saúde mental. Neste sentido é um desafio de monta os governos estabelecerem medidas sustentadas e, simultaneamente, integradoras dos imigrantes. Em Portugal, considera-se que há escassez de estudos relacionados com a área das migrações e da saúde.Metodologia: Estudo exploratório, descritivo e transversal. A finalidade foi a de identificar o estado de saúde, saúde mental e qualidade de vida da comunidade brasileira residente em Lisboa e o seu acesso aos serviços de saúde. Este estudo teve como principais objectivos a caracterização sociodemográfica, a identificação de variáveis inerentes ao processo migratório, a identificação da auto-apreciação do estado de saúde, a caracterização do acesso aos cuidados de saúde, a identificação do grupo em provável sofrimento psicológico, a comparação entre os resultados dos imigrantes juridicamente regulares e irregulares e a comparação entre a população imigrante e a população portuguesa. Inicialmente, foi prevista a utilização da técnica de amostragem de propagação geométrica ou snowball, pois a amostra tornar-se-ia maior à medida que os próprios inquiridos identificam outros potenciais respondentes. Ao longo do estudo, a metodologia inicial mostrou-se insuficiente para estabelecer uma amostra mais representativa dos imigrantes juridicamente irregulares. Para este feito, foi utilizada a metodologia de amostragem por conveniência e o local escolhido para a recolha da amostra foi o Consulado do Brasil em Lisboa. O instrumento de recolha de dados empregue baseou-se no questionário utilizado no 4º Inquérito Nacional de Saúde. O MHI-5 (Mental Health Index 5) é um instrumento de saúde mental e é parte integrante do inquérito, sendo recomendado pela Organização Mundial de Saúde. Consta de cinco itens relativos à saúde mental e os resultados são classificados através de um indicador que mede a existência de provável sofrimento psicológico. Foram incluídos no estudo 213 brasileiros. De seguida, procedeu-se ao tratamento estatístico dos dados. Resultados: A população inquirida é jovem, a maior parte tem entre 18 e 44 anos. As mulheres representam mais de metade da amostra. A taxa de actividade é elevada e a taxa de desemprego é similar à nacional. A inserção laboral prioritária é nos segmentos pouco qualificados ou de semi-qualificação. Aproximadamente um terço dos inquiridos afirmou ser beneficiário do Sistema Nacional de Saúde. A autoapreciação do estado de saúde é classificada como bastante positiva, assim como a qualidade de vida. O provável sofrimento psicológico, definido no MHI-5 pelo ponto de corte no score 52, atinge 23,3% dos participantes. Os homens apresentam melhores resultados do que as mulheres. Além disso, para os valores mais baixos no MHI-5 foram encontradas relações com as longas jornadas de trabalho e o diagnóstico de doença crónica.Discussão: O presente estudo apresenta limitações em relação à dimensão da amostra e à provável existência de enviesamento pela ausência de aleatorização. Apesar da legislação portuguesa garantir o acesso aos serviços de saúde e garantir a equidade no caso dos imigrantes que fazem descontos para a Segurança Social, apenas um terço referiu ser beneficiário do Sistema Nacional de Saúde. Este dado pode ser justificado por factores como o cumprimento da lei por alguns serviços e, também, pela falta de conhecimento da legislação e da forma de funcionamento do Serviço Nacional de Saúde por parte dos imigrantes. O facto das mulheres representarem o maior grupo em provável sofrimento psicológico é consistente com a literatura. As hipóteses levantadas para explicar este resultado podem ser agrupadas em: artefactos metodológicos, causalidade biológica e determinação social. Em relação ao instrumento, é possível que o MHI-5 se comporte de forma diferente no que diz respeito ao género.-------------------------------------------Introduction: The utilization of health services has important implications for the health state of the populations. The immigration policies adopted in the destiny countries are going to influence the health state of immigrant communities. Policies that limit the access of immigrants to health care are going to increase the vulnerability and the risk factor in health. Although immigration promotes several disruptive actions in ones life, migrating, on its own, cannot be considered as a risk factor for health and mental health. The preponderance of the socioeconomic factors has gained relevance in the study of migrations and also in the study of general health state and mental health. This happens because, in general, immigrants are in a more unfavorable situation compared with the destiny country population. The low socioeconomic status, the poor working and housing conditions, the lack of social support and the juridical irregularity are indicators of the incremented risk to mental health. Therefore, it is a major challenge for governments to find sustainable, and simultaneously, integrative measures for the immigrants. The studies related with the migrations and health in Portugal were considered to be few.Methods: It is an exploratory, descriptive and transversal study. The purpose is to identify the health state, mental health, quality of life and the access to health care of the Brazilian community resident in Lisbon. In addition, this study has as main goals the sociodemographic characterization, the variables identification inherent to the migrating process, the identification of the self-appreciation of health state, the characterization of the access to health care, the identification of the group in probable psychological suffer, the comparison between the results of regular and irregular immigrants and the comparison between the immigrant population and the Portuguese population. Initially it was predicted the utilization of the geometric propagation or “snowball”, as sampling technique, because the sample becomes larger as one answerer identify other potential answering persons. Along with the study, the methodology has shown insufficient to establish a more representative sample of the irregular immigrants. For this latter case, it was used a convenient sample methodology and the place chosen for the sample gathering was the “Consulate of Brazil in Lisbon”. The instrument was based in the questionnaire used in the “4th National Health Inquiry”. The MHI-5 (Mental Health Index 5) is a mental health instrument which is part of the enquiry and it is recommended by the World Health Organization. There are five items related to mental health and the results are classified through an indicator which measures the existence of a probable psychological suffer. It were included 213 Brazilian in the study. After, the statistical treatment of the data took place.Results: The answering population is young and the majority is between the 18 and 44 years of age. The women represent more than one half of the sample. The activity rate is high and the unemployment rate is similar to the national one. The priority labor insertion is in the few qualified or of semi-qualification segments. Approximately, one third of the answering people has stated to be beneficiary of the National Health System. The self-appreciation of the health state as well as the quality of life are classified as fairly positive ones. The probable psychological suffer, as defined in the MHI-5 through the cut point in the score below or equal to 52, reaches 23,3% of the sample population. Men show the better results than women. Further, for the lower values of MHI-5 it was found a relation with the long work periods and chronic disease diagnostic. Discussion: The present study evidences limitations in relation to the sample dimension and in relation to the existence of biases due to the lack of randomness. Although the Portuguese legislation guarantees the access to health services and the equality in the cases of the immigrants that do their Social Security discounts, only one third has mentioned to be beneficiary of the National Health System. This can be justified by several facts such as the non-fulfillment of law by some national services or the lack of knowledge of the legislation or the functioning process of the National Health System. Women representing the bigger group in probable psychological suffer has been coherent with the literature review. The hypothesis set to explain this result might be grouped in: methodological artifacts, biologic cause and social determination. In relation to the instrument used, it may be that MHI-5 behaves in a different way in respect to gender.

A moderna integração das lacunas: o caso português

Assuming a concrete dispute that has no legal answer in the Portuguese civil statutes, this article attempts to discover the right solution according to existing doctrinal and legal materials. We begin with a brief analysis of the answer, as it would be provided by the modern theory of law to said dispute. This answer will then be compared with the result that is found in accordance with Article 10(3) of the Portuguese civil code (provision on legal gaps).

A intervenção dos orgãos de polícia criminal em sede de julgamento

Currently, Portugal assumes itself as a democratic rule of substantive law State, sustained by a legal system seeking the right balance between the guarantee of fundamental rights and freedoms constitutional foreseen in Portugal’s Fundamental Law and criminal persecution. The architecture of the penal code lies with, roughly speaking, a accusatory basic structure, “deliberately attached to one of the most remarkable achievements of the civilizational democratic progress, and by obedience to the constitutional commandment”, in balance with the official investigation principle, valid both for the purpose of prosecution and trial. Regarding the principle of non self-incrimination - nemo tenetur se ipsum accusare, briefly defined as the defendant’s right of not being obliged to contribute to the self-incrimination, it should be stressed that there isn’t an explicit consecration in the Portuguese Constitution, being commonly accepted in an implicit constitutional prediction and deriving from other constitutional rights and principles, first and foremost, the meaning and scope of the concept of democratic rule of Law State, embedded in the Fundamental Law, and in the guidelines of the constitutional principles of human person dignity, freedom of action and the presumption of innocence. In any case, about the (in) applicability of the principle of the prohibition of self-incrimination to the Criminal Police Bodies in the trial hearing in Court, and sharing an idea of Guedes Valente, the truth is that the exercise of criminal action must tread a transparent path and non-compliant with methods to obtain evidence that violate the law, the public order or in violation of democratic principles and loyalty (Guedes Valente, 2013, p. 484). Within the framework of the penal process relating to the trial, which is assumed as the true phase of the process, the witness represents a relevant figure for the administration of criminal justice, for the testimonial proof is, in the idea of Othmar Jauernig, the worst proof of evidence, but also being the most frequent (Jauernig, 1998, p. 289). As coadjutant of the Public Prosecutor and, in specific cases, the investigating judge, the Criminal Police Bodies are invested with high responsibility, being "the arms and eyes of Judicial Authorities in pursuing the criminal investigation..." which has as ultimate goal the fulfillment of the Law pursuing the defense of society" (Guedes Valente, 2013, p. 485). It is in this context and as a witness that, throughout operational career, the Criminal Police Bodies are required to be at the trial hearing and clarify the Court with its view about the facts relating to occurrences of criminal context, thus contributing very significantly and, in some cases, decisively for the proper administration of the portuguese criminal justice. With regards to the intervention of Criminal Police Bodies in the trial hearing in Court, it’s important that they pay attention to a set of standards concerning the preparation of the testimony, the very provision of the testimony and, also, to its conclusion. Be emphasized that these guidelines may become crucial for the quality of the police testimony at the trial hearing, thus leading to an improvement of the enforcement of justice system. In this vein, while preparing the testimony, the Criminal Police Bodies must present itself in court with proper clothing, to read before and carefully the case files, to debate the facts being judged with other Criminal Police Bodies and prepare potential questions. Later, while giving his testimony during the trial, the Criminal Police Bodies must, summing up, to take the oath in a convincing manner, to feel comfortable, to start well by convincingly answering the first question, keep an attitude of serenity, to adopt an attitude of collaboration, to avoid the reading of documents, to demonstrate deference and seriousness before the judicial operators, to use simple and objective language, to adopt a fluent speech, to use nonverbal language correctly, to avoid spontaneity responding only to what is asked, to report only the truth, to avoid hesitations and contradictions, to be impartial and to maintain eye contact with the judge. Finally, at the conclusion of the testimony, the Criminal Police Bodies should rise in a smooth manner, avoiding to show relief, resentment or satisfaction, leaving a credible and professional image and, without much formality, requesting the judge permission to leave the courtroom. As final note, it’s important to stress that "The intervention of the Police Criminal Bodies in the trial hearing in Court” encloses itself on a theme of crucial importance not only for members of the Police and Security Forces, who must welcome this subject with the utmost seriousness and professionalism, but also for the proper administration of the criminal justice system in Portugal.

A consagração dos naturais

“One cannot analyse a legal concept outside the economic and socio-cultural context in which it was applied” – such is the longstanding thesis of António Manuel Hespanha. I argue that Hespanha’s line of argument relative to legal concepts is also applicable, mutatis mutandis, to legal agents: the magistrates, advocates, notaries, solicitors and clerks who lived and exercised their professions in a given time and place. The question, then, is how to understand the actions of these individuals in particular contexts – more specifically in late 18th century and 19th century Goa. The main goal of the present thesis was to comprehend how westernized and Catholic Goan elite of Brahman and Chardó origin who provided the majority of Goan legal agents used Portuguese law to their own advantage. It can be divided into five key points. The first one is the importance of the Constitutional liberalism regime (with all the juridical, judicial, administrative and political changes that it has brought, namely the parliamentary representation) and its relations with the perismo – a local political and ideological tendency nurtured by Goan native Catholic elite. It was explored in the chapter 2 of this thesis. The second key point is the repeated attempts made by Goan native Catholic elite to implement the jury system in local courts. It was studied in the chapter 3. Chapter 4 aims to understand the participation of the native Catholic elite in the codification process of the uses and traditions of the indigenous peoples in New Conquests territory. The fourth key point is the involvement of those elites not only in the conflict of civil and ecclesiastical jurisdictions but also in the succession of the Royal House of Sunda. It was analyzed in the chapter 5. The functions of an advocate could be delegated to someone who, though lacking a law degree, possessed sufficient knowledge to perform this role satisfactorily. Those who held a special licence to practice law were known as provisionários (from provisão, or licence, as opposed to the letrados, or lettered). In the Goa of the second half of the 18th century and the 19th century, such provisionários were abundant, the vast majority coming from the native Catholic elite. The characteristics of those provisionários, the role played by the Portuguese letrados in Goa and the difficult relations between both groups were studied in the chapter 6.

Derecho administrativo comunitario

The globalization and the need for countries to unite under regional organizations fostered the emergency of a Communitary law. This isa law made bysupranational institutions capable of submitting States toa single legal order. Thistransforms administrative law on international administrative law that overflows the national legal system. This phenomenon was felt on Colombia given the current development of the Andean Integration System