Conflitos federativos: uma abordagem sob a perspectiva da teoria dos jogos

Abstract

Conflicts are inherent in a federal countries. Part of these conflicts are competence conflicts, in which it is discussed who the Constitution has granted the prerogative to edit a certain legal act. However, there is another range of conflicts that deal with situations where there is not necessarily doubt as to which entity is competent to issue the questioned act. Thus, the present text discusses the resolution of federative conflicts in which the action of a competent entity causes damages to be borne by another federal entity. The traditional approach to resolving these conflicts is the application of an "all or nothing" solution, in which either the act is deemed unconstitutional for violating the autonomy of the affected federal entity, or constitutional, for having resulted from the legitimate exercise of a competence granted by the Constitution. However, the "all or nothing" solution is not always ideal, as it may subject a federal entity to the yoke of another without any resistance, bringing the federation closer to a unitary state, or prevent the competent federal entity from adopting measures that the Constitution has assigned to it. An alternative to the "all or nothing" solution, which is commonly practiced in the decision-making arena, is the establishment of compensation for the affected federal entity. There are cases where there is no consensus on these. In this case, the conflict can be submitted to the Judiciary, which shall decide on them. The text proposes the examination of procedural methods experimented by the Brazilian Supreme Court (STF) in some paradigmatic precedents, together with an analysis of the court's performance from the perspective of game theory and mechanism design theory, as an alternative to the "all or nothing" solution by the courts. The final proposal is that judicial decision-making in defining compensations will always be suboptimal, and that priority should be given to a consensual solution. Through game theory, it is possible for the court to adopt actions to overcome impasses and induce the parties to reach agreements. If a consensual solution cannot be obtained, it is proposed that the court examine the act and, if it is proven that there are damages to be borne by one of the federal entities, determine the fixing of compensations. After this stage, a new negotiation phase is recommended to reach a consensus on the amount to be compensated. If this is not possible, the court will be responsible for fixing it. In this case, it is proposed that the court create a mechanism to make the act of revealing the value as close as possible to the measure's usefulness to the responsible party for its issuance as a parameter for fixing the compensation, with some suggestions. In summary, the text proposes the revision of the traditional model of resolution of federative conflicts, which does not consider compensations, and suggests the adoption of a more flexible approach that prioritizes a consensual solution among the federal entities and the fixing of compensations in cases where damages are to be borne by one of the federal entities. The proposal is based on procedural methods experimented by the Brazilian Supreme Court and the perspective of game theory and mechanism design theory.