Name: GRAZIELA ARGENTA ZANETI
Publication date: 22/05/2018
Advisor:
Name |
Role |
|---|---|
| VALESCA RAIZER BORGES MOSCHEN | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| BRUNELA VIEIRA DE VINCENZI | Internal Examiner * |
| VALESCA RAIZER BORGES MOSCHEN | Advisor * |
Summary: There is a growing number of legal situations that can not be dealt within the territorial limits of a country, WHERE the probability that a single act affects a plurality of actors linked to different legal systems is very large. The rights deserve a full and equal protection, when submitted to the same legal situation. The search for a proper jurisdiction to protect the rights and the people shows the positive aspect in the choice of jurisdiction. The objective of this work is to assist in the construction of a Brazilian dogmatic that guarantees a jurisdiction appropriate to the transnational collective processes, based on a comparative law analysis of the traditional English common law and North American law. The assessment of the circumstances of the case, flexibility and substantial justice are essential elements for this construction. In the collective processes, the collective technique is emphasized by opt out formation of the group and by the capacity of potentialization of the objectives of access to justice, corrective justice and procedural economy, prioritizing a non-fractioned tutelage approach. Tutelage one, tutelage all. The inclusion of foreign members in the group formed in the transnational collective actions, the transnational impact of the collective process in foreign jurisdictions and the extraterritorial reach of the transnational corporations make the analysis of the appropriate jurisdiction more complex. Brazil, in this context, has, based on fair trail, a flexible technique of typicity capable of allowing the proper exercise of jurisdiction in transnational collective processes, through the use of three levels of regulation: Public International Law and Constitution (first level), the rules established by the Code of Civil Procedure, especially (second level) and discretion (third level). This, coupled with the existence of a broad collective technique (opt out in group formation) and advanced (with objectives similar to class actions), enables Brazil to reach a prominent position in a scenario of replacement of the traditional magnet forum, whose greatest example was the United States. The proper jurisdiction is not any jurisdiction (formal access), but rather a jurisdiction capable of providing adequate protection to the rights (substantial access). There is, therefore, a humanitarian reason and an economic reason for its exercise. Humanitarian reason is the appropriate jurisdiction for rights submitted to the same legal situation and the economic reason is to avoid competitive advantages resulting from illicit behavior in a global context.
Keywords: Conflict of Laws. Jurisdiction. Flexibilization. Fair trail. Transnational collective redress.
