Acordos em conflitos coletivos à luz do princípio da decisão informada: desafios e perspectivas para o processo coletivo brasileiro

Abstract

Although the collective procedural system, in Brazil, may be considered one of the most advanced in the world, it is essential to rethink the classic forms of exercising collective rights, privileging multi-door justice mechanisms, which gained even more notoriety since Resolution n. 125/2010 of the National Council of Justice, the Mediation Law and the Civil Procedural Code from 2015. Among the obstacles for agreements involving collective disputes become a viable and satisfactory alternative, the informational asymmetry between collective legitimated and those responsible for the damage must be highlighted, which causes an imbalance between the parties concerning the agreement. However, there is an even more serious problem: class members and interested third parties, the main beneficiaries of those agreements, often do not have basic and indispensable information to exercise the right to opt in or opt out, emphasizing the importance of discussing the principle of informed consent in collective agreements. Having this in perspective, based on an analysis of Brazilian Law and the experience of class action agreements, in the USA, we will explore the implications of the principle of informed consent in collective agreements, especially under three essential pillars: notice of class members; participation of the right holders and interested parties; and judicial approval/supervision of settlements. The main objective of this study is to bring contributions to Brazilian Law that aim to improve the legal system of consensual resolution regarding collective disputes, which is still very focused on Conduct Adjustment Commitments, moving to the center of the debate the class members and interested parties, who are the main beneficiaries of a collective agreement