By Ivan C. Dilly and Roberto Correia da Silva Gomes Caldas
The bird strike that led to the cancellation of LATAM flight LA3367 has reignited an essential debate about litigation in the Brazilian airline industry. LATAM CEO Jerome Cadier's outburst on social media reflects a growing concern among airlines: the financial and operational impact of the proliferation of lawsuits, often filed by engers seeking compensation for situations beyond the companies' control.
The current reality shows that suing airlines in Brazil has become an almost automatic practice, encouraged by paid ments and legal incentives that promote collective and individual actions. This phenomenon not only overloads the judicial system, but also generates significant costs for companies, which are ed on to consumers in the price of tickets. According to data published in the media, the Brazilian airline industry spends approximately R$1 billion annually on lawsuits.
But how can this problem be solved without compromising engers’ rights?
A New Approach to Aviation Regulation
A new regulatory model is needed to balance legal certainty, innovation and efficiency in dispute resolution. Applied to the airline industry, this model can offer ways to reduce excessive litigation and make rules more dynamic and adaptable to the operational reality of airlines.
The pillars of this approach include:
Hybrid governance (public-private): integration between the State and the private sector in defining rules and guidelines.
Dynamic regulation (hard law + soft law): combination of rigid standards with flexible principles that can be adjusted quickly.
Use of technology in regulation: implementation of digital platforms to speed up decisions and reduce bureaucracy.
Harmonization between local regulations and international standards: to avoid regulatory conflicts and provide predictability to the sector.
How can this New Structure reduce Judicialization in the Air Sector?
- Creation of “Sandboxes Regulatory”
- Controlled environments to test innovative solutions in managing conflicts between engers and companies.
- Tests with alternative compensation systems, avoiding legal action.
- Regulatory Layer System
- Base Layer: fundamental principles of consumer protection and legal security.
- Intermediate Layer: specific technical standards for each situation (such as bird strikes).
- Agile Layer: adaptable protocols for different operational scenarios.
- Permanent Technical-Legal Committees
- Multidisciplinary composition (lawyers, regulators, aeronautical engineers).
- Continuous analysis of standards and proposal of solutions to reduce conflicts.
- Digital Regulatory Governance Platform
- Centralization of data on aviation incidents and compensation policies.
- Automation of decisions on enger rights, reducing unnecessary litigation.
- Alternative Dispute Resolution Mechanisms (ADR)
- Technological mediation to resolve complaints before they become lawsuits.
- Chambers specialized in disputes in the aviation sector.
The Future of Air Regulation: More Efficiency and Less Conflict
Implementing a more dynamic and efficient regulatory model in the airline industry could represent a significant advance in the way incidents are handled and engers are compensated. Rather than fostering litigation, this approach allows for agile, fair and efficient solutions to be applied without overburdening the judiciary or generating excessive costs for airlines and consumers.
Brazilian aviation needs a model that reconciles enger rights with the sustainability of the sector. The challenge now is to transform this vision into reality, adopting innovative solutions for more efficient and balanced regulation.
Ivan C. Dilly
Lawyer. LL.M., Master of Laws from the University of California, Berkeley School of Law/USA. MBA from FIA Business School – Fundação Instituto de istração/SP. Specialist in Consumer Relations Law from PUC/SP – Pontifical Catholic University of São Paulo. Specialist in Business Law from Mackenzie University/SP. Postgraduate degree from Harvard Law School/USA. Postgraduate degree from Stanford University/USA. Postgraduate degree from the Hague Academy of International Law/Netherlands.
Roberto Correia da Silva Gomes Caldas
Master's and Doctorate in State Law from PUC/SP – Pontifical Catholic University of São Paulo. Professor at the Paulista School of Law, PUC/SP – Pontifical Catholic University of São Paulo. Director of IASP – Institute of Lawyers of São Paulo (period: 2013-2015; 2019-2021). Visiting professor of the Master's and Doctorate Courses and Post-doctorate of the PPGD at UNICURITIBA. Permanent professor of the Master's Courses in Law of the RRII and Integration in Latin America at UDE – University of Business – Montevideo/Uruguay. Lawyer in Brazil and Portugal.
