A representação adequada no processo coletivo: aspectos teóricos e elementos para a sua sistematização

Abstract

This work aims to study the adequacy of representantion in the collective actions. In the first part, adequacy of representation is shown to be an institute of Collective Litigation, attracting its principles and norms. Sequentially, the work analyses the relationship between adequacy of representation and adjudication, arguing that the traditional view of this concept shall be revisited, as supervision and management activities, exercised by the the judge along the process, are seen as decisive for the task of reviewing adequacy of representation. Moreover, the constitutionality of collective actions is affirmed, focussing on the due process clause and other relevant constitutional principles, denying, thus, influential criticisms made in the literature, being relevant for this goal the analysis, in constitutional perspective, of institutes of Collective Litigation in the United States, Germany and Brazil. The second part attests that adequacy of representation is not a mere exercise of pragmatism, as it is possible to build theories able to explain representative processes from the concepts of efficiency and dignity. Furthermore, it is shown that to assure adequacy of representation in collective actions, some requirements must be found, for instance, a specific methodology to approach the problem and the judicial review, that is considered to be essential and conducted from qualitative and quantitative criteria, all able to guarantee a fair process, allowing the extension of the effects of the decision on people who do not take any direct participation in the process. Finally, it is shown that the decision that organizes the process is an important reference for reviewing adequacy of representation in brazilian collective actions, as well as it is stressed how relevant is for the process, within the repetitive cases system, the parties be able to manifest their opinions related to process selection, adequacy of representation and applicable legal questions before the judge decides about adequacy of representation.