The Scope of Application of Alternative Dispute Resolution Mechanisms for Financial Consumers: Insights from the EU And Brazil

In the European Union, the protection of consumers of financial services is often based on the interaction between consumer law and financial legislation and regulation, which depends on the coordination of the personal and material scopes of the two areas. However, this coordination is not always achieved, creating challenges for the fair and equal treatment of consumers dealing with financial institutions. Directive 2013/11/EU on alternative dispute resolution (ADR) illustrates this limitation, as persons who enter into contracts for financial services, but who are not considered “consumers” under the Directive, are excluded from its facilitated out-of-court redress mechanisms. In this context, this study examines whether the personal and material scope of Directive 2013/11/EU is sufficient to provide access to redress for consumers of financial services. Using a legal-theoretical methodology, including doctrinal analysis, case law interpretation and functional comparison, the study interprets the Directive in the light of consumers’ right to access to justice through ADR mechanisms, with a particular focus on the definitions of “consumer,” “trader,” and “contractual obligations,” which determine the scope of the Directive. The functional comparison is first conducted between the EU and its Member States, and then extended to Brazilian law as an international jurisdiction. The Brazilian approach to consumer ADR is based on the protection of consumers by the State as a fundamental constitutional right, complemented by the right of access to justice. Furthermore, this jurisdiction is particularly relevant due to its distinctive online dispute resolution (ODR) framework, geographical representativeness, and status as a developing economy. As an underlying normative intention, the study offers a purposive interpretation of the personal and material scope of the Directive, consistent with the case law of the Court of Justice of the European Union, yet flexible for coherent implementation by Member States. Accordingly, the study constitutes a multi-level, international, and intradisciplinary analysis of Directive 2013/11/EU in relation to consumers’ access to justice in the field of financial services.