A arbitragem como meio adequado e online de resolução de conflitos de consumo: o modelo institucionalizado espanhol e a sua aplicação no Brasil

Abstract

Using a hypothetical-deductive approach, assisted by the comparative method, with explanatory and exploratory research and bibliographic and documentary procedures, the present thesis deals with consumer arbitration in Spain and Brazil as an appropriate way of consumer alternative dispute resolution and online dispute resolution. This thesis is linked to the lines of research “Law, Science, Technology & Innovation” of the doctorate program in Law at the Pontifical Catholic University of Rio Grande do Sul-Brazil and “Consumer Law” of the doctorate program in Legal Sciences at the University of Granada-Spain. The first part of the thesis analyzes the consumer arbitration system that exists in Spain and the possibility of incorporating a similar institutionalized system in Brazil in the light of the Brazilian legal framework for consumers access to justice. Its characteristics are examined, as well as its organization (especially in relation to the role of the arbitrator and the institutional body), the forms of arbitration agreement (including aspects relating to the adherence public offer),the principles and development of the consumer arbitration process, the arbitral award (including the differences of the arbitral award in law or equity), the control of the outcome of the arbitration (especially for annulment of arbitral awards). The second part of the thesis analyzes consumer arbitration systems, existing in Spain and proposed for Brazil, as a means of ODR, both from the perspective of electronic arbitration itself and as part of a wider ODR platform. Issues relating to the development of electronic consumer arbitration in a consumer arbitration system are examined, including the arbitration agreement and trustmarks by electronic means, electronic authentication for identity and signature purposes, virtual hearings and digital evidence. Issues relating to the European Union's ODR Platform and the Brazilian Consumidor.gov.br platform are investigated, such as their scope, operation, accessibility, protection of personal data, role in conflict prevention and, especially, the possibility of consumer arbitrations of the Spanish and Brazilian consumer arbitration systems being carried out in these respective platforms, including for cross-border consumer disputes, by qualifying their ADR entities when they meet the quality requirements that guarantee a high level of consumer protection, which involve principles of transparency, effectiveness, fairness, expertise, independence and impartiality, liberty, legality and specific information obligations. The thesis concludes by noting the effective protection of consumers and access to justice in consumer arbitrations of institutionalized systems in Spain and Brazil, as well as the potentials of including them in multi-door ODR platforms, especially in view of a design oriented not only towards the resolution but also the prevention of consumer conflicts and the use of persuasive mechanisms for these purposes, even though there are challenges, especially in aspects relating to information and cooperation for the online resolution of consumer conflicts.