NESTED GAMES AND COLLECTIVE RIGHTS GUARDIANSHIP: REFLECTIONS ON THE BRAZILIAN ANDNORTH AMERICAN SYSTEMS

Abstract

This article, through instruments of Comparative Law, performs a qualitative approach, considering the collective rights guardian ship institutes of the Brazilian legal system with the phenomenon of entrepreneur litigation in the context of the North American system.The theoretical framework used is the nested games theory, by Tsebelis, through which it is possible to argue that the structure of collective rights guardianship in the Brazilian system, for not considering as a relevant factor the economic rational choice of its participants (interested, legitimate, member of the class, lawyers, company), weakens cooperation between such agents and unbalances the forces in favor of companies brought in such demands, which ends up compromising the effectiveness of the judicial protection sought in favor of the collectivity and discouraging the filing of class actions, not ably those whose object is the defense of homogeneous individual rights.