Defesa coletiva do consumidor em TIC : Alternative Dispute Resolutions sob o viés da Análise Econômica do Direito

Abstract

This paper aims how the collective and individual consumer rights in Information and Communication Technology (ICT) in Brazil are processed and judged to propose more efficient and effective extrajudicial alternatives through the adoption of alternative means of conflict resolution under the bias of the law & economics. It seeks to contextualize the definitions of collective rights in the Brazilian and international legal system and to compare them with alternative ways of dispute resolution, known internationally as Alternative Dispute Resolution (ADR), such as mediation and conciliation. The method used was empirical research through the collection of bibliographic, normative and institutional data. The study revealed the inadequacy of the current means of resolving consumer rights conflicts, especially those that can be characterized as collective rights, more specifically homogenous individual rights. The improvement of the extrajudicial dispute resolution bodies of the brazilian agency Agência Nacional de Telecomunicações (ANATEL) and performance of the universities to resolve collective consumer disputes through ADR in the field of ICT with the greater participation of civil associations and organizations that defend users’ rights. Universities have a strategic and fundamental role in meeting the conflicts faced by consumers in the consumption of ICT goods and services. The study also reveals that the application of the bias of the economic analysis of the law is more effective than the current jurisdictional systems governed by civil law insofar as it is necessary to consider the socioeconomic impacts of the decisions. The proposition of these alternative methods for conflict resolution does not violate fundamental rights, and much less does it intend to subrogate the competencies of the Judiciary, since the premises for decisions must be based strictly on non-legal basis, that is, normative-technical and socioeconomic criteria that do not violate the rights set forth in the Federal Constitution and pertinent federal legislation.