A jurisdição nacional e a proteção à parte mais fraca

Abstract

The present work analyzes how private international law focuses on multiconnected relationships to correct or mitigate the imbalance of power between the parties, specifically in the context of establishing state jurisdiction. Although Brazilian law is adopted as an obvious starting point, comparative law serves as an important study tool, with particular attention to European law. As a consequence of the materialization of the discipline, there is appreciation of the issue of establishing jurisdiction and guaranteeing access to justice for the weaker party. The most evident contribution of Brazilian legislation to the subject concerns the new jurisdictional hypotheses included in the 2015 Código de Processo Civil, related to maintenance and consumer lawsuits. Nevertheless, protection of the weaker party must be a concern when creating or applying any jurisdictional rule. As a result, the scope defined by the legal hypotheses of jurisdiction can be extended (possibility admitted by the Superior Tribunal de Justiça in 2008) or limited. Examples of enlargement are: the exercise of jurisdiction in the absence of another State capable of exercising jurisdiction satisfactorily (forum necessitatis); the disregard of a foreign forum selection clause considered abusive by the judge; the broad interpretation of jurisdictional hypotheses in labor matters; and the relativization of state immunity in labor matters. The limitation (the “declination of jurisdiction”) is usually accepted based on the principle of good administration of justice, to avoid contradictory or ineffective decisions. I propose perceiving the declination of jurisdiction as a duty of the judge, whenever necessary to protect the rights of the weaker party, and except in cases where the legislator expressly recognized the obligation to exercise jurisdiction (exclusive jurisdiction). This is because the consequences of the inadequate exercise of jurisdictional power affect the weakest part of the legal relationship more severely, and the mere filing of a lawsuit in a jurisdiction distant from the defendant may be enough to significantly unbalance the procedural relationship in favor of the plaintiff.