Christopher Hodges "Consumer ADR and Collective Redress"
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Transcript Christopher Hodges "Consumer ADR and Collective Redress"
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 Oxford
Life Member, Wolfson College, Oxford
Erasmus Professor of the Fundamentals of Private Law
Erasmus University, Rotterdam
Collective Redress
Problem: How to deal with mass problems?
Fact: The most familiar technique within civil procedure
is the U.S. class action
Starting From Scratch
What 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 policy
No cost to P
No loser pays rule
One-way cost shifting rule
High/triple damages
High fees for intermediaries
Wide discovery and depositions
Punitive damages
Jury trials
Aggregation of individual claims
No regulatory pre-emption
Features of private enforcement: class actions
Ban on class procedure if alternatives
Restriction to certified personnel
Certification criteria
Evaluation of merits
Certification by court
Opt-in or opt-out
Notice to class members
Court approval of settlement
Court approval of lawyers’ fees
Stand-alone or follow-on
EU Events
2008 14 MSs have collective rules: mostly little used
Consultation on Benchmarks
Several Studies
Competition Damages: ECJ, DG COMP
Collective actions →Collective redress + ADR
2010 Consultations on CR and ADR
2011 Principles? Safeguards?
Judicial need: origins and sectors
State
Origin
Type
medicinal products
horizontal
adulterated rape seed oil
consumer
competition damages policy
competition
academic
horizontal
Deutsche Telekom
investors
DES, blood products etc
settlement
Sweden
consumers
Parmalat etc
consumers, financial
Poland 2010
collapsed building
horizontal
France?
… France Telecom
Mediator
consumers
medicines?
Explosions, collisions,
bankruptcy,
Fortis nationalisation
?
England & Wales GLO 1999
Spain 2000
UK CAT 2002
Sweden 2002
Germany KapMuG 2005
Netherlands 2005
Denmark, Finland, Norway
2008
Italy 2008→2010
Belgium?
Issues
Constitutional 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.
2.
Set standards of behaviour
Prevent things going wrong (infringement)
3.
Put things right (restoration)
Three Pillar Model
ADR
Regulation
Private
Litigation
The New Integrated Model
Voluntary Settlement – ADR
encourage specific schemes, negotiation, mediation, ombudsmen
Regulatory Oversight of Restitution
Danish Consumer Ombudsman: residual powers to arrange collective redress,
or
UK targeted responsive enforcement policy, plus restorative justice
Judicial Procedure
last resort, so not expansive, generally opt-in