From Divergences Between Theoretical Foundations to the Convergence of Ideas Regarding the Preservation of the Fundamental Right to Adversarial Proceedings

Abstract

This article analyzes the theoretical foundations of Eugenia Ariano Deho’s doctrine on the theory of precautionary relief and, based on them, establishes a critical dialogue with the author. As a starting point, it contrasts the conception of Piero Calamandrei with the theoretical framework developed by Pontes de Miranda and Ovídio A. Baptista da Silva, in order to examine the distinction between precautionary relief and urgent satisfactive relief. It is argued that, despite conceptual divergences, both perspectives converge on a common concern: the preservation of the process as a guarantee and, in particular, of the fundamental right to adversarial proceedings. From a garantist perspective, the article concludes that a proper delimitation between precautionary relief and satisfactive relief is essential to avoid the indiscriminate granting of summary measures without prior adversarial hearing.