(i) Content and relevance
This research project aims to deepen our understanding of the dogmatic and practical, procedural and substantive problems that arise in a society where the damage caused affects an infinite number of people and harms fundamental legal assets. Ecological disasters such as those resulting from the Mariana and Brumadinho dam collapses, along with the BP oil rig explosion, damage caused to consumers by practices that violate competition law, and the activities of large companies, both public and private, that are carried out in ways that run counter to the requirements of the legal order are just some of the examples in which the civil procedural response systems known in different legal spaces are proving to be inadequate and eroded.
This is why we have to face up to this great challenge: what new structures can be devised to provide effective protection for situations that have been violated and need to be compensated? What structures should be created to impose the adoption of behaviours that alter the way in which major social players operate?
The Portuguese legal system is the reference for an attempt to respond to all these challenges. However, the intention is to draw on the experiences of foreign legal systems, particularly those represented by the guest researchers. This communication is all the more relevant because it can, without exaggeration, be said that the world is divided into two blocs when it comes to finding answers to the problems identified: a Europe which, by tradition, conceives procedural systems based on an individualistic logic and which is beginning, even by imperative of the European Union legislator, to take the first steps in all these areas; and Brazil and the United States which, perhaps even because of their continental scale, have long since constructed a new general theory of procedure, capable of dogmatically explaining the models of reaction to the illicit offences that occur in mass societies and which sometimes appear as immeasurable damage.
A few more notes in this context; they make it possible to understand the absolute topicality of the issue and the urgency of finding answers. The development of societies since the second half of the 20th century has led to transformations in civil litigation. On the one hand, the intervention of the masses in legal transactions has proliferated, as has the growing juridicity of individual and collective life. Think, for example, of the rights of consumers, investors, students, sportspeople, etc.
On the other hand, the organisational model of companies consists of an agglomeration of structures, with varying degrees of complexity, built around a purpose or interest.
This is, after all, the characteristic of the human species that radically distinguishes it from others: the ability to build immaterial structures that bring together different members of the species around a common interest or in a community of interests. The fruits of this capacity have been accumulating since the dawn of time, with each present day being the pinnacle of its expression. Structures that in some cases, given their significant size, circulate in discourse under the name "system": the health system, the education system, the justice system, etc. But there are other structures which, although smaller in size, polarise and pursue ends that are of interest to many: for example, legal persons, especially commercial companies.
Because the components of the systems are interconnected and because elements with identical characteristics are repeated in the systems, it is not uncommon for a problem in one part of the structure to also occur in other parts of the structure. Collective protection is called for when the same legal problem occurs in different individual legal spheres. This circumstance raises the desirability, if not the necessity, of employing dispute resolution methods that are not confined to singular bilateral conflicts, but integrate the subjective plurality whose elements are, or may be, parties to objectively identical conflicts.
The responses available in the Portuguese procedural system, namely joint litigation and coalition, appear to be insufficient when the holders of the interests at stake are in the hundreds or thousands, or even indeterminable. The procedural challenges generated by this new form of litigation, known as "class actions", are multiple and cross-cutting. Just to name a few, there are the hesitations about jurisdiction, legitimacy and legal representation, the organisation of acts at the final hearing, the sentence and its effects, in particular res judicata, but also the admissibility of settling, withdrawing the claim or the case. And we can look in other directions, reflecting, for example, on the pressure caused by the protection of classes or categories of interests on the institutes of a substantive system that conceives of damages as compensation, which translate into difficulties in identifying and quantifying damages and in awarding damages to the various members of the category. This research project will pay attention to all these problems.
The structuring processes raise different problems, despite their affinity with those related to collective protection. Aimed at bringing about a change in the way a structure works, they have their origins in a 1954 decision by the US Supreme Court, which settled the case of Brown v Board of Education of Topeka. Following the refusal to enrol a black child in a public school attended exclusively by white children, the Supreme Court ordered the school to accept the child's enrolment. But the Supreme Court went one step further: having learnt, in a procedurally relevant way, that the school that had refused enrolment was not following an isolated practice, but rather was following a guideline common to several public schools in different states, it took advantage of the decision to order the public education system to change its practice, accepting both black and white children into schools without discrimination. With this decision, the Supreme Court, identifying a problem that cut across the entire public education system, issued a ruling with a structural effect. The category of structural proceedings was inaugurated, those in which the competent body issues an injunction ordering a change in the way a specific structure operates, either because it considers it to be illegal or because it considers that it does not follow best practice. Obtaining protection through structural proceedings is gaining ground. And the concept of structural proceedings is being extended to fields other than the one it was originally used in: today there is no doubt that proceedings that have an impact on the functioning of a structure - reorganisation of a company, protection of minorities in cases of M&A operations, bankruptcy proceedings or, more broadly, universal liquidation of assets - negotiations that affect a significant plurality of credits and debts of a specific subject, in a negotiated and extrajudicial context, are examples of what today is already classified as structural proceedings.
We are also interested in cases where immeasurable damage is caused. The Mariana and Brumadinho accidents, on the one hand, and the attacks of 11 September or the explosion of the BP platform in the Gulf of Mexico, on the other, prompt fundamental reflections on the compensation function of civil liability and the method of calculating damage. In the light of both groups of cases, the question must be asked as to the limits of liability law in its effective capacity to respond to a certain type of damage, which we have described as immeasurable damage. The "compensation through funds" mode raises the question of whether we are still moving forward with liability law, or whether we should instead develop a new language for these types of protection.
Finally, we will look at whether, and in what terms, arbitration can be used to obtain collective protection (class arbitration). The doubts are manifold: starting with the uncertainty about the need for the express will of the interested parties in the constitution of the arbitral tribunal, and ending, also for this reason, with the (in)efficacy of res judicata.
The problems posed by the object of the research proposed here are foundational, as they imply understanding and perhaps revising concepts and methods that occupy the essence of the protection of private interests. It is therefore closely related to the line of research in which this project is being carried out.
Each researcher, or groups of researchers that will be formed, will be assigned a specific problem area, on which they will carry out work that will have a conceptual or dogmatic dimension, but also a practical one, i.e. a study on the possibility, necessity and convenience of integrating the solutions developed into the Portuguese legal system.
(ii) Links with other projects in the same line of research
This project has a close thematic link with another, also proposed for the five-year period 2024/2029, entitled "Civil Liability in Massive Relationships". This link does not imply overlap or redundancy. Part of the problems dealt with by this project, namely causing immeasurable damage and compensating for it through funds, is at the heart of the "Civil Liability in Mass Relationships" project. However, as has been pointed out, not only is the affinity only partial, but it is also complementary in nature: while this project seeks to analyse the problem from a tendentially procedural perspective, the aforementioned project adopts an essentially substantive approach.
The demonstrated affinity and complementarity justifies cooperation between the researchers of both projects, which should be reflected in the joint carrying out of activities, but also in the synchronisation of the pursuit of research.
Work will begin at the first meeting of the researchers, in the presence of consultant Kenneth Feinberg, with the aim of setting out the problem questions on which the research will focus, as well as distributing them to the researchers. The aim is for the results of the research to be immediately useful for the concrete realisation of justice. This will be followed by a meeting between the researchers and the magistrates appointed by the Centre for Judicial Studies and the Superior Council of the Judiciary, with the aim of getting an impression from these professionals of the main difficulties that class actions and structuring processes raise or could raise in practice.
This step is crucial to capturing the difficulties, real or constructed, that the decision-making structures claim to encounter, thus confirming the relevance of the issues identified to be overcome through the work to be carried out, and achieving the final objective of the research.
After these two initial delimiting moments, the project takes its course, calling on the researchers to play a leading role. The research is carried out as a network, involving periodic meetings to share and critically appraise the intermediate individual and collective results. Meetings will be held in person or by telematic means, or in a hybrid format. On these occasions, following a previously outlined plan and according to the themes distributed, the researchers will be invited to present the results of their research to date, followed by a debate and assessment of progress.
During this period, it will be essential to maintain frequent contact with the progress and intermediate results of the "Civil Liability in Mass Relationships" project. To this end, there will be two researchers common to both projects who, in addition to their regular work, will have to keep the other researchers up to date on the progress of the project in which they are not involved, as well as achieving productive liaison between all those involved. In addition, researchers will be encouraged to attend meetings or events of the partner project as observers.
Immediately after the last meeting of researchers, a meeting will be scheduled with the partner institutions to present the research product. With this initiative, it will be possible to collect feedback on the work carried out and assess whether, from the perspective of the ultimate beneficiaries of the research, the results achieved are fruitful. At the same time, this meeting will serve to gather observations that will help to improve the results. At the end of the work, a final joint conference will be organised with the researchers from this project and the "Civil Liability in Mass Relationships" project to present the conclusions that have emerged from the research.
Of the articles produced and presented, two will be selected for publication in an indexed journal with international relevance to the topics under investigation. All the articles presented at the final conference, with the exception of those mentioned in the preceding paragraph, will be brought together in a collective work and proposed for publication in an Edited Series from a leading international publisher in the field.
The research will be recorded in a report, written in Portuguese, which will summarise the meetings between researchers as well as the main contributions from consultants and partner institutions, ending with the main conclusions of the research as well as proposals addressed to the legislator.