Direito, Processo e Tecnologia - Ed. 2020

Direito, Processo e Tecnologia - Ed. 2020

Access To Justice And Consumidor.Gov Case

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Fernanda Mattar Furtado Suriani

Master of Law at University of Edimburgh, PhD student at the University of São Paulo Faculty of Law. Federal Public Lawyer (Procuradora Federal). This paper was presented in “Brazil Japan Litigation and Society Seminar 2 - Cultural Diversity and Global Changes”, held on 16th and 17th of September 2019 at University of São Paulo, Brazil.

Introduction

The advent of internet and the fast-paced shift from the local commercial relations to the e-commerce 1 also expanded conflicts from the offline to the online environment, raising the need for effective mechanisms to solve them. Considering that information and communication technologies (ICT) made possible cross-border transactions and that they occur with the convenience of a “click”, formal judicial process doesn’t seem able to handle this kind of conflict in an appropriate way, neither the alternative dispute resolution mechanisms (ADR) which, despite of being cheaper and more informal, demand face-to-face encounters.

According to Katsh and Rifkin in the first half of the 1990’s in the United States, when the use of e-mail began, the first online conflicts arose (misuse of mailing lists). During this period disputes emerge and were settled informally and within the specific contexts in which they occurred. From 1995 to 1998, the growing use of the Internet brought the need for online institutions prepared to receive and resolve the most frequently emerging conflicts. During this period several experimental projects were developed by universities and foundations. From 1998 the online dispute resolution (ODR) industry really began to exist. Companies have shown an interest in investing in online solutions to conflicts emerging in the virtual environment. It soon became clear that ODR should be the first choice for disputes arising from online activities as well as used for offline disputes. From the 2000s onwards began a period of extraordinarily fast change that new institutions and technologies emerge as rapidly as they become obsolete. 2

Cortés calls the phases described by Katsh and Rifkin as: a) hobbyist phase (from the creation of the internet until 1995), b) experimental phase (from 1995 to 1998), c) entrepreneurial phase (1998 to 2002), d) institutional phase (from 2002), the latter being described as the stage at which governments and public institutions began to adopt ODR programs such as Online Money Claim in England and Wales and Online Small Claims in Ireland. 3

In Brazil, the government created an online platform in 2014 as an extra door, aside the courts, for disputes that occur between consumers and companies. The platform mainly provides a public cyber space for direct negotiation between consumers and traders and creates a public database with settlement results (solved/not solved) and a satisfaction rank.

In 20th May 2019 a technical cooperation agreement was signed to incorporate the ODR mechanism “Consumidor.gov” to the electronic platform of judicial process (PJe).

The aim of this paper is to discuss if Consumidor.gov is being effective to increase access to justice and how it could be improved. For this purpose, I will start presenting how ODR mechanisms affect the concept of access to justice. Then I will bring the context on how consumer-related conflicts are handled by the three main channels in Brazil: (i) Administrative process, (ii) Courts and (iii) Consumidor.gov. Finally, I will analyze the outcome of those channels and show whether Consumidor.gov has been able to broaden access to justice and ways to further improve it.

1.Access to justice and ODR

The rise of alternative dispute resolution (ADR) represents an effort to increase access to justice in a reality of time-consuming and increasing cost and complexity of our court systems. More recently, the spread of online dispute resolution (ODR) demonstrates the understanding that different types of disputes often require different procedural avenues for addressing them. 4

ODR first emerged from the need for building trust in virtual environment to enhance e-commerce. It was developed to fill an access to justice gap on commercial relations that took place in cyberspace among people geographically separated. Considering the excessive costs and complexity that it would generate to access courts for parties in cross-border activities involving small disputes, means that they simply won’t have any other alternative to address their conflicts.

It seems natural that conflicts originated from online commercial relations might be directed to online dispute resolution mechanisms.

ODR has been …

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Ilustração de computador e livro
jusbrasil.com.br
16 de Agosto de 2022
Disponível em: https://thomsonreuters.jusbrasil.com.br/doutrina/secao/1196970014/access-to-justice-and-consumidorgov-case-direito-processo-e-tecnologia-ed-2020