Collective suits and homogeneous individual rights in Brazil: a critical view about efficacy. In this article, the authors initially offer an overview of collective suits in Brazil and describe the evolution of the legislation related to this subject. They examine the controversies born in the context of the relationships between the citizens and the Government; and between mass suppliers and consumers in Brazil. They consider this kind of exam useful not only to understand the Brazilian reality, but also to compare it to other systems. Therefore, the article analyzes the different ways to file a suit grounded on homogeneous individual rights, including issues like standing to sue and res judicata. Thus, the article questions the reasons why collective suits are not, in the authors’ opinion, effective, by examining the difficulties to manage those kinds of controversies prior to the suit, especially considering the role expected from and performed by the public regulatory agencies. The authors also criticize the maintenance of the res judicata erga omnes in utilibus rule and propose some alternatives to improve the Brazilian legal system.
Flávio Luiz Yarshell is a full professor in civil procedure at São Paulo University Law Faculty (since 2008), where he graduated in 1986 and got the Master’s, the Doctor’s and Post Doctor’s degrees, in 1993, 1998 and 2004, respectively. He teaches regularly for the graduation and post graduation courses and he is a lecturer in other law schools. He is a member of the International Association of Civil Procedure, the Iberoamericano Institute of Procedural Law and the Brazilian Institute of Procedural Law. Some of his publications include subjects such as evidence in civil procedure (Antecipação da prova sem o requisito da urgência, São Paulo, Malheiros, 2009); a special kind of appeal in the Brazilian system which allows to cancel a res judicata decision (Ação rescisória – juízo rescindente e rescisório, São Paulo, Malheiros, 2004); different forms of actions (Tutela jurisdictional, São Paulo, DPJ, 2004); and specific performance (Tutela jurisdictional específica nas obrigações de declaração de vontade, São Paulo, 1993). He also published articles in different law magazines and university journals. He has practiced law in São Paulo, Brasília and other places in Brazil since 1987, mainly in litigation matters, including arbitration. He also gives legal opinions. He was an electoral judge from 2007 to 2012.
Pedro Fortes is a DPhil Candidate at Oxford, a Public Prosecutor at the Attorney General's Office of Rio de Janeiro, and a Law Professor at FGV Law School (Rio de Janeiro) with professional and academic expertise on consumer protection class actions.