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The Reform of Class and Representative Actions in European Legal Systems

A New Framework for Collective Redress in Europe

By: Christopher Hodges
Media of The Reform of Class and Representative Actions in European Legal Systems
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Published: 07-10-2008
Format: PDF eBook (?)
Edition: 1st
Extent: 324
ISBN: 9781847314659
Imprint: Hart Publishing
Series: Studies of the Oxford Institute of European and Comparative Law
RRP: £67.50
Online price : £37.12
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About The Reform of Class and Representative Actions in European Legal Systems

This book examines the principal trends and policy goals relating to collective redress mechanisms in Europe. It identifies three principal areas in which procedures and debates have emerged: within consumer protection and competition law, and from some national court systems. It identifies differing national models of public and private enforcement in consumer protection law in the Member States, and the search for more efficient and inclusive procedures that would deliver increased access to justice and enhanced compliance with desired standards (arguably through deterrence).

A sequence of case studies illustrates the pros and cons of differing models. Lessons are also drawn from the experience of class actions in the USA over the transactional costs of private law mechanisms, and adverse economic consequences.

The various policy strands are unravelled and prioritised, and options for the future are recommended. The American 'private enforcement' model is contrasted with the more prevalent European public and mediated enforcement tradition. New developments involving Ombudsmen and oversight of compensation by public enforcement bodies are identified, and underlying theories of restorative justice and responsive regulation discussed. Public, private, formal, informal, ADR and voluntary methodologies are evaluated against criteria, and it is concluded that the optimal options for collective redress in Europe involve a combination of approaches, with priority given to public and voluntary solutions over private court-based mechanisms.

"Reform of collective redress is the hottest topic in European civil justice today. Dr. Hodges, one of the world's leading experts in the field, provides a deeply informed evaluation of the current debates. Illustrative case studies drawn from both consumer protection and competition areas enrich and ground his provocative analysis of the complex issues at stake making this a "must-have" book for every practitioner, academic and policy-maker in the field".

Professor Jane Stapleton, Australian National University, and University of Texas, Austin.

Table Of Contents

1.Introduction
2.Consumer Collective Redress Mechanisms
Initial Consumerist Models
France
Differentiation between Public and Private Models in National Enforcement
Model A: Primacy of Public Bodies
The UK
UK Consumer Protection Law
Compensation Orders
UK Competition Law
The Nordic Model
Nordic Compensation Schemes: Medical and Drug Injuries and Road Traffic Accidents
The Netherlands
Model B: Emphasis on Private Sector Bodies
Portugal
Spain
The CEE Situation
Issues with the Involvement of Civil Society Organisations
Experimentation and Reform
Conclusions
3.Court Rules for Multiple Claims
Introduction
The English GLO
Experience with English Group Actions
Ireland
Sweden
The Netherlands
Germany
Italy
Possible Introduction of Procedures in Other Member States
France
Poland
Conclusions on the Newer Damages Mechanisms
Principles: Rights versus Efficiency?
Criteria
Settlement
An Issue of Evolution
4.Collective Redress at European Level: Existing Mechanisms
The EU Legislative Background
Legal Competence
EU Policy on Civil Justice Systems
Alternative Dispute Resolution
Evolution of Consumer Collective Redress
Misleading Advertising
Unfair Terms in Consumer Contracts
The 'Injunctions Directive'
The Consumer Protection Cooperation Regulation
The Unfair Commercial Practices Directive
Other EU Collective Mechanisms
Intellectual Property Enforcement
Late Payments
ePrivacy Directive
Environmental Protection
Compensation for Crime Victims
Conclusions
5.Technical Issues
Similarity or Difference?
Opt-in and Opt-out: Binding Solutions, Avoiding Abuse and Delivering Justice
Binding Effect and Inclusivity
Fundamental Rights
Funding and Cost Considerations
Discussion
Conclusions
6.The Problems that Need to be Avoided
Undesirable Consequences
The Australian Tort Crisis
The England and Wales Product Liability Cases
Conclusion: Abuse Could Happen Anywhere
Issues for Europe
7.Towards a European Collective Approach to Damages
The Developing Debate
Consumer Protection
Evidence of Need in Consumer Protection: a Compensation or Market Rectification Issue?
Competition Damages and Enforcement
The 2008 Competition Damages White Paper
Evidence of Need: a Competition Deficit?
The Challenges at EU Level: Different National Models
The Policy Options for Europe
Conclusion: Summary of the Issues
8.The Policy Rationales for and Goals of Collective Redress
Access to Justice
Enhancing the Economy
Regulation Through Litigation
Deterrence and Behaviour Modification
Regulatory and Enforcement Theory
Penalties and Sanctions Theory: Restorative Justice
Practical Examples
Conclusions
9. Evaluating the Options
Establishing Criteria
1. The Private Litigation Model
2. A Public Body Approach
3. The Voluntary and ADR Approach
4. The NGO Approach
Evaluating the Options-and a Holistic Approach
10.Summarising the Findings and Challenges for Europe
Consumer Protection
Competition Law
Conflicting Models of Influencing Behaviour
Policy Objectives
Redress and Justice

Reviews

“...this is a great book, carefully researched and well written. It deserves to be read from all those interested and working in the field of collective redress, politicians, lawyers and academics, from the first till the last page. [Christopher Hodges] provides for new insights and the rich material on which the proposal is based, comprehensive empirical evidence and intensive reference of the European and US scholarly work, invites all those who have a clear cut answer to the burning issue of 'private collective litigation' in mind to reconsider his or her position. The most inspiring and thought provoking book invites to push the debate even further and to raise questions that need to be investigated.” –  Hans-Wolfgang Micklitz, Common Market Law Review, Volume 46 Issue 1

“The books wide analysis goes beyond the narrow limits as to whether opt-in or opt out is the right approach in mass civil actions...the author goes beyond analysing symptoms of the problem to the deeper analysis of what the best approach to achieving justice should be...To fail to protect collective victims is not an option. The need is for practical solutions working together: this book is an significant start to that debate.” –  John Peysner, Civil Justice Quarterly, Vol 28, Issue 2

“...the material tracing the development of remedies across Europe is comprehensive and very useful for comparative purposes...The value of this book is that it sets out to test the utility rather than the structure of available solutions and accordingly makes a valuable contribution to the debate set in motion..by the Commission.” –  Mark Mildred, Modern Law Review

“All in all, this information-packed and stimulating work from an acknowledged expert in the field constitutes a major contribution to current debates” –  Ken Oliphant, Yearbook of European Tort Law

“With his factual approach, Christopher Hodges goes beyond an over-idealized debate on collective redress mechanisms. This book is essential reading for anyone dealing with this issue, and wishing to get a deeper insight into the topic.” –  Professor Dietmar Baetge, Zeitschrift Für Europäisches Privatrecht

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