Arbitragem de direitos coletivos no Brasil: admissibilidade, finalidade e estrutura

Abstract

Matter of great actuality, arbitration of collective rights has been a subject of discussion in many countries. Having one of the most developed systems of collective protection of the world and presenting itself as one of the most active countries in arbitration today, Brazil can not avoid the debate. What is proposed in this paper, therefore, is to investigate the arbitration of collective rights under Brazilian law. Since it is a new subject, the study should be undertaken in a few key steps: presenting state of the art on the subject in the world and Brazil; mapping all the obstacles that could prevent the development of arbitration of collective rights in Brazil; verifying the advantages and disadvantages of arbitration for the protection of collective rights, delimiting, from this analysis, the areas in which it can be used; and finally establishing a basic structure for the development of arbitration of collective rights. As will be demonstrated throughout this study, collective arbitration is not yet completely consolidated even in the country from where it came, in the United States, and there are no sufficient subsidies in Comparative Law for the construction of a Brazilian model. Moreover, contrary to what is said, not all collective rights can be considered non-disposable and it is not always required the express and individualized consent for celebrating an arbitration agreement, which would give space for collective arbitration especially in cases susceptible of repetitive litigation and requiring high degree of specialization of judges. As a rule, collective arbitration should be triggered on the basis of an arbitration commitment, and be administered by an arbitral institution. A system of prior control of proceeding shoud also be established, relativizing even some aspects of the principle of competence-competence, in order to prevent abuses in the selection of arbitrators, in the definition of collective rights subject to arbitration and in the possible use of public resources to finance the arbitration proceeding. The legal status of res judicata in judicial class actions can be adapted to the arbitral environment. Finally, regarding the liquidation of collective arbitration award, it should, in principle, be brought before the judiciary.