O exercício abusivo dos direitos de ação e de petição com efeito anticoncorrencial (SHAM LITIGATION): conceito e concreção no direito brasileiro

Abstract

This paper intends to verify the applicability of the sham litigation theory in Brazil. According to this theory, when an economic agent uses abusively the right of action or petition, in order to prevent or hinder the entry or stay of other economic agents in a given market, must apply the penalties under the antitrust law. Held first a study of the essential content of fundamental rights of action and petition, as well as the possibility of imposing limits and restrictions to them. At this point, it is a brief analysis of the theory of fundamental rights, with emphasis on notion of factual support, limits and restrictions. Later, study the construction of the sham litigation theory, pointing out the criteria developed by foreign jurisprudence to identify the abusive exercise of rights of action and petition with anticompetitive effect. Finally, weave considerations about the Brazilian System for Protection of Competition (SBDC), with the aim of verifying that the Brazilian law permits the application of the sham litigation theory and which outlines the theory given in Brazil. We conclude that the abusive exercise of rights of action and petition may render opportunity to antitrust penalties. However, the criteria collected in foreign law to identify the sham litigation should not assume an air of definitive, making necessary an insightful analysis of each case.