consumer adr and collective redress professor dr christopher hodges head of the cms research...
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CONSUMER ADR and COLLECTIVE REDRESS
Professor Dr Christopher Hodges
Head of the CMS Research Programme on Civil Justice Systems
Centre for Socio-Legal Studies, University of OxfordLife Member, Wolfson College, Oxford
Erasmus Professor of the Fundamentals of Private LawErasmus University, Rotterdam
Collective RedressProblem: How to deal with mass problems?
Fact: The most familiar technique within civil procedure is the U.S. class action
Starting From ScratchWhat is architecture of the legal system?
Is it the same in different parts of the world?
Public and Private Enforcement: different models in U.S. and EU
Enforcement Policy: deterrence, risk, responsive…
Private Enforcement – of private rights and public norms
Encourage everyone to enforce
Align substantive law
Remove economic and technical barriers
Insert economic incentives
Features of private enforcement: deterrence policyNo cost to PNo loser pays ruleOne-way cost shifting ruleHigh/triple damagesHigh fees for intermediariesWide discovery and depositionsPunitive damagesJury trialsAggregation of individual claimsNo regulatory pre-emption
Features of private enforcement: class actionsBan on class procedure if alternativesRestriction to certified personnelCertification criteriaEvaluation of meritsCertification by courtOpt-in or opt-outNotice to class membersCourt approval of settlementCourt approval of lawyers’ feesStand-alone or follow-on
EU Events
2008 14 MSs have collective rules: mostly little used
Consultation on BenchmarksSeveral StudiesCompetition Damages: ECJ, DG COMPCollective actions →Collective redress + ADR2010 Consultations on CR and ADR2011 Principles? Safeguards?
Judicial need: origins and sectors
State Origin TypeEngland & Wales GLO 1999 medicinal products horizontal
Spain 2000 adulterated rape seed oil consumer
UK CAT 2002 competition damages policy competition
Sweden 2002 academic horizontal
Germany KapMuG 2005 Deutsche Telekom investors
Netherlands 2005 DES, blood products etc settlement
Denmark, Finland, Norway 2008
Sweden consumers
Italy 2008→2010 Parmalat etc consumers, financial
Poland 2010 collapsed building horizontal
France? … France TelecomMediator
consumersmedicines?
Belgium? Explosions, collisions, bankruptcy,
Fortis nationalisation
?
IssuesConstitutional and fundamental rights
problem with determination of individual rights when the owner is not involved,eg opt-out
Principles of subsidiarity, procedural autonomy, proportionality
Issues with Private Enforcement
Financial incentives or barriers (safeguards) eg loser pays contingency fees, third party funding, trip[le damages
Technical barriers eg opt-in v opt-out certification Court approval of settlement
The problem: inability to calibrate the level of enforcement/abuse
What are we trying to do?First principles
1. Set standards of behaviour
2. Prevent things going wrong (infringement)
3. Put things right (restoration)
Three Pillar Model
RegulationADR Private Litigation
The New Integrated Model
Voluntary Settlement – ADRencourage specific schemes, negotiation, mediation, ombudsmen
Regulatory Oversight of RestitutionDanish Consumer Ombudsman: residual powers to arrange collective redress, or UK targeted responsive enforcement policy, plus restorative justice
Judicial Procedurelast resort, so not expansive, generally opt-in