CONSUMER ADR and COLLECTIVE REDRESS Professor Dr Christopher Hodges Head of the CMS Research Programme on Civil Justice Systems Centre for Socio-Legal.

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Presentation transcript:

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 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 StateOriginType England & Wales GLO 1999medicinal productshorizontal Spain 2000adulterated rape seed oilconsumer UK CAT 2002competition damages policycompetition Sweden 2002academichorizontal Germany KapMuG 2005Deutsche Telekominvestors Netherlands 2005DES, blood products etcsettlement Denmark, Finland, Norway 2008 Swedenconsumers Italy 2008→2010Parmalat etcconsumers, financial Poland 2010collapsed buildinghorizontal France?… France Telecom Mediator consumers medicines? Belgium?Explosions, collisions, bankruptcy, Fortis nationalisation ?

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. Set standards of behaviour 2. Prevent things going wrong (infringement) 3. Put things right (restoration)

Three Pillar Model Regulation ADRPrivate 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