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Collective and Mass Litigation in Europe: Model Rules for Effective Dispute Resolution [Kõva köide]

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  • Formaat: Hardback, 400 pages, kõrgus x laius: 234x156 mm
  • Ilmumisaeg: 13-Nov-2020
  • Kirjastus: Edward Elgar Publishing Ltd
  • ISBN-10: 1789906040
  • ISBN-13: 9781789906042
Teised raamatud teemal:
Collective and Mass Litigation in Europe: Model Rules for Effective Dispute ResolutionSuurem pilt
  • Formaat: Hardback, 400 pages, kõrgus x laius: 234x156 mm
  • Ilmumisaeg: 13-Nov-2020
  • Kirjastus: Edward Elgar Publishing Ltd
  • ISBN-10: 1789906040
  • ISBN-13: 9781789906042
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9781789906042.html
Märksõnad:
Written by leading authorities in the field of European civil procedure and collective redress, this timely book explores the model collective proceedings rules in the ELI/UNDROIT European Rules of Civil Procedure. It explains the intended application of this 'best practice' set of collective redress rules, intended to promote greater consistency in civil and commercial court procedure across Europe, linking to existing European practice and initiatives in the field.Chapters investigate important issues for mass and collective actions including certification of actions as suitable for collective treatment, collective settlement, costs and funding. Concluding with insights from class action experts outside Europe, this incisive book provides objective perspectives on this rapidly developing area of European legal practice and proposes areas where these rules may influence class actions internationally.

Collective and Mass Litigation in Europe will be a key resource for scholars and students of collective redress and civil procedure. The commentary on this significant benchmark in collective redress litigation will also be of benefit to policy makers, judges and legal practitioners involved in mass claims.

Arvustused

'With the recent adoption of the EU Directive on collective redress, a study on the respective rules in the European Rules of Civil Procedure proposed by UNDROIT and ELI is most welcome. These rules are intended to serve as a model for national legislatures, precisely what is needed now in order to implement the new directive. The editors assembled a team of leading academics and practitioners from around the globe. The book is well-organized and not only provides a succinct commentary on the ERCP rules on collective redress, but goes beyond that by contributing to a truly in-depth understanding of the subject of collective redress in general.' -- Georg Kodek, Vienna University of Economics and Business, Austria 'The concept of developing model rules for a European Civil Procedure Code has, as its zenith, the topic of collective redress, given the longstanding variances of legal attitude, culture, substantive law, and procedural rules across the EU member states on this intricate topic. This ambitious work, via its various contributors, makes an important and thoughtful contribution to the collective redress journey, by drawing out the differences, and commonalities, that inform the essential ability of any legal system to enable access to justice for those who could not otherwise afford it.' -- Professor Rachael Mulheron, Queen Mary University of London, UK 'A specifically European model of collective redress is taking shape. Its progressive construction owes much to lessons learned from across the Atlantic, so that its design can be seen in many ways as a response to what was long seen as American exceptionalism. As Europe opens up to aggregate litigation and the emergence of "the statistical victim" (famously so-termed by Sheila Jasanoff), the analyses provided in this book will serve usefully to navigate the complex procedural issues that accompany the transplant.' -- Horatia Muir Watt, Sciences Po Law School, France

List of contributors
xiii
1 General introduction
1(6)
Astrid Stadler
Emmanuel Jeuland
Vincent Smith
1 European Rules of Civil Procedure
1(1)
2 Background to the ELI/UNIDROIT Project
2(1)
3 Collective Redress in the ERCP
3(1)
4 Overview of this Study on Parties and Collective Redress
4(3)
2 The concept of `party'
7(24)
Emmanuel Jeuland
1 Parties to the Proceedings
7(9)
1.1 Public and private relationships
9(3)
1.2 Capacity to possess a right
12(1)
1.3 Litigation capacity
13(1)
1.4 Parties in the public interest
14(2)
1.5 Prospective parties
16(1)
2 Do Natural Entities Have Litigation Capacity?
16(10)
3 Do Robots and Other `Artificially Intelligent' Machines Have Capacity to Litigate?
26(4)
4 Conclusion
30(1)
3 Joinder, consolidation and group claims
31(35)
Vincent Smith
1 Introduction: What This
Chapter is About
31(3)
2 Joinder of Parties to an Action
34(8)
2.1 Voluntary joinder
36(3)
2.2 Necessary joinder (Rule 38)
39(3)
3 Consolidation of Existing Claims (Rule 37)
42(2)
4 Intervenors in an Action
44(7)
4.1 Principal intervenors (Rule 39) and Amici Curiae (Rules 35 and 43)
44(3)
4.2 Intervenors in support of a party
47(4)
5 Group Claims
51(9)
5.1 Distinction between group claim and collective proceedings
52(1)
5.2 Types of group claims: test cases, common issues
53(3)
5.3 The `opt-in' principle and group claims
56(3)
5.4 Case management: contrasting collective and group claims
59(1)
6 Remedies and Settlements in Group Claims
60(3)
7 Conclusions on Multi-Party Proceedings
63(3)
4 Change of parties: representation, substitution, assignment
66(22)
Emmanuel Jeuland
1 Representation and Mass Claims
67(4)
1.1 Representation of natural persons
67(2)
1.2 Legal persons and other entities
69(1)
1.3 General rules on representation
70(1)
2 Intervention to Help a Party or the Judge
71(3)
2.1 Intervention in support
71(2)
2.2 Amicus Curiae: a friend to the court
73(1)
3 Substitution of Parties
74(5)
3.1 Substitution when commencing an action
75(3)
3.2 Substitution during the proceedings
78(1)
4 Succession and Assignment of Claims
79(5)
5 Other Procedural Tools
84(4)
5 Introduction: collective redress
88(7)
Astrid Stadler
Emmanuel Jeuland
Vincent Smith
1 ERCP Collective Redress in Context
88(3)
2 The Collective Redress Rules Within the ELI/UNIDROIT Project
91(4)
2.1 Structure and terminology
91(1)
2.2 Three pillars of collective redress
92(2)
2.3 How the commentary is arranged
94(1)
6 Types of claim, structure and certification of collective proceedings
95(32)
Astrid Stadler
1 Types of Claim Available in Collective Redress Proceedings
95(5)
1.1 General principles
95(1)
1.2 Skimming off illegal ly gained profit
96(1)
1.3 Damages actions
96(1)
1.4 Disgorgement proceedings
97(3)
2 Approach in the ERCP Collective Redress Rules
100(2)
3 Standalone Actions for Injunctions to Stop Illegal Practices
102(1)
4 Structure of Collective Proceedings Under the ERCP
103(18)
4.1 Preparatory stage - attempt to settle the case
104(3)
4.2 Registration of the claim
107(1)
4.3 Proceedings connected with certification
108(2)
4.4 Certification of the collective redress action
110(11)
5 Structure of Standalone Proceedings for Declaring a Settlement Binding
121(6)
5.1 Comparative background
121(2)
5.2 Standing to negotiate settlements
123(1)
5.3 Structure of settlement proceedings
124(3)
7 Legal standing in collective redress
127(26)
Ianika Tzankova
1 Collective Redress Design
127(2)
1.1 Introduction to design basics
127(1)
1.2 Basic models of legal standing in collective redress
128(1)
1.3 Overview of discussion in this chapter
129(1)
2 Agency Issues Under the Basic Approaches
129(13)
2.1 The individual claimant model
130(3)
2.2 The institutional claimant model
133(8)
2.3 Concluding remarks on agency and incentives
141(1)
3 Legal Standing Under the ERCP Collective Redress Rules
142(1)
4 Legal Standing in Collective Redress at EU Level
143(4)
4.1 Legal standing for collective redress in the 2013 Recommendation
144(1)
4.2 Legal standing in the 2018 draft Directive
145(2)
4.3 Concluding remarks
147(1)
5 Parallel Actions
147(5)
5.1 Parallel actions at national level
148(1)
5.2 Cross-border issues: the Steinhoff example
149(3)
6 Concluding Remarks
152(1)
8 Case management and the role of the judge
153(29)
Magne Strandberg
Vincent Smith
1 ERCP and Active Case Management: Background and Sources of Inspiration
153(4)
2 The Nature, Justification and Principles of Rules on Case Management
157(7)
2.1 What is case management?
157(2)
2.2 Justification for rules on case management
159(2)
2.3 Principles of active case management
161(3)
3 Special Challenges for the Application of Rules on Case Management in Collective Proceedings
164(5)
3.1 Interplay between general and special rules
164(1)
3.2 Choice of procedural track
164(2)
3.3 Case management decisions and the role of group members
166(3)
4 Additional Case Management for Collective Actions
169(11)
4.1 Acting in the interests of group members
169(4)
4.2 Enforcement of rules against qualified entities
173(2)
4.3 Keeping the group and others informed
175(3)
4.4 Distribution of compensation
178(2)
5 Conclusions
180(2)
9 Evidence in collective redress proceedings under the ERCP
182(29)
Fernando Gascon Inchausti
1 Interplay Between General Provisions on Evidence and Specific Rules on Collective Redress
182(5)
1.1 Rules on collective redress and general provisions on evidence
182(1)
1.2 The ERCP rules on access to information and evidence
183(2)
1.3 Access to evidence: proportionality and efficiency as overriding principles
185(2)
2 Impact of the General Rules on Evidence on Collective Proceedings
187(10)
2.1 General provisions
187(5)
2.2 Issues concerning the management of evidence
192(5)
3 Access to Information and Evidence Held by the Opponent or a Third Party: Disclosure System in Collective Proceedings?
197(10)
3.1 Parties
199(1)
3.2 Time
200(1)
3.3 Procedure
201(1)
3.4 Criteria to obtain an order for access to evidence
202(3)
3.5 Implementation and sanctions
205(1)
3.6 Costs and security
206(1)
4 Types of Evidence
207(3)
4.1 Admissibility of written testimony
207(1)
4.2 Flexible approach to expertise
208(2)
5 Conclusions
210(1)
10 Calculating compensation in collective redress claims
211(22)
Nils von Hinten-Reed
1 Editors `Note'
211(1)
2 Introduction
212(3)
3 Damages Quantification
215(5)
3.1 Introduction
215(1)
3.2 The Commission's practical guide
216(1)
3.3 Issues in damages quantification
217(3)
4 Example: UK Collective Action Cases
220(8)
4.1 Introduction
220(2)
4.2 Gibson v Pride Mobility Scooters
222(3)
4.3 Merricks v MasterCard
225(3)
5 Pass-On
228(1)
6 Sub-Classes
229(1)
6.1 Gibson v Pride Mobility
229(1)
6.2 Merricks v MasterCard
230(1)
7 Distribution Methods
230(1)
8 Certification Issues and Conclusions
231(2)
11 Collective settlements
233(31)
Astrid Stadler
1 Introduction
233(3)
2 Rules on Settlements in the ERCP
236(2)
3 Standard to be Applied When Approving Settlements
238(14)
3.1 National standards
238(2)
3.2 How to assess `fairness' and `reasonableness'
240(9)
3.3 European rules of civil procedure
249(3)
4 Basis for Court Approval
252(3)
4.1 Relevant inputs
252(1)
4.2 Risk of further litigation - confidentiality
253(2)
5 Procedural Tools for Gathering Information
255(6)
5.1 General considerations
255(1)
5.2 Comments by group members and second opt-out
256(5)
5.3 Fairness hearings
261(1)
6 Effects of Court Approval
261(1)
6.1 Modifications of proposed settlement
261(1)
6.2 Final decision on approval and its effects
262(1)
7 Conclusions
262(2)
12 Costs and funding of collective redress proceedings
264(32)
Stefaan Voet
1 Introduction
264(2)
2 Loser Pays Rule
266(2)
3 Qualified Claimant
268(5)
3.1 Individual class member
268(2)
3.2 Governmental body
270(1)
3.3 Association or foundation
271(2)
4 Class Counsel
273(5)
5 Third Parties
278(16)
5.1 Public funding and legal aid
278(4)
5.2 Legal expenses insurance
282(2)
5.3 Third-party litigation funding
284(10)
6 Conclusions
294(2)
13 Cross-border issues
296(14)
Michael Stumer
1 Introduction
296(1)
2 Jurisdiction for Collective Redress Proceedings
297(9)
2.1 Applicability of the Brussels I bis Regulation
297(2)
2.2 General jurisdiction
299(1)
2.3 Special heads of jurisdiction
300(4)
2.4 Party autonomy
304(1)
2.5 Reform
305(1)
3 Recognition and Enforcement of Collective Settlements and Judgments Given in Collective Redress Proceedings
306(4)
3.1 General considerations
306(1)
3.2 Enforcement based on the Brussels I bis Regulation
307(1)
3.3 Enforcement based on the EEO Regulation
308(1)
3.4 Reform
308(2)
14 ERCP collective redress and the wider world
310(43)
Astrid Stadler
Emmanuel Jeuland
Vincent Smith
Richard Marcus
Peter Cashman
Choong-soo Han
Hermes Zaneti Jr.
1 Future Prospects for Collective Redress
310(7)
1.1 Jurisdiction in European cross-border collective redress
310(1)
1.2 Consolidation of parallel collective actions from different Member States?
311(5)
1.3 Benchmarking the ERCP collective redress framework
316(1)
2 Learning from the American Experience
317(6)
2.1 Introduction
317(1)
2.2 Class certification is the biggest issue
317(1)
2.3 Entrepreneurial lawyers are the lifeblood of US aggregate litigation
318(1)
2.4 `Trans-substantive' aggregation rules can be put to inventive purposes
318(1)
2.5 The ERCP in light of US experience
319(4)
2.6 Conclusions
323(1)
3 Reform of European Collective Redress: Some Lessons from the Australian Experience with Class Actions
323(12)
3.1 Doctrinal and procedural developments
326(8)
3.2 Policy developments
334(1)
4 Korean Situations in Collective Redress and Lessons from the ELI/UNIDROIT Collective Redress Rules
335(7)
4.1 Background and situation in Korea
335(2)
4.2 Lessons from the ERCP and some comments
337(5)
5 The Brazilian Experience from over 40 Years of Collective Redress: Some Comments on the ERCP Collective Redress Rules from a Brazilian Perspective
342(9)
5.1 The Brazilian experience with class actions
342(1)
5.2 The origins and development of class actions to pursue a public good (damages, costs and funding)
343(3)
5.3 Fair and effective collective redress in a combined model
346(4)
5.4 Conclusions
350(1)
6 Conclusions: ERCP Collective Redress Rules as a Model
351(2)
Appendix (ERCP Rules) 353(11)
Index 364
Edited by Astrid Stadler, Professor and Chair in Civil Law, Procedural Law and Private International Law, and Comparative Law, University of Konstanz, Germany, Emmanuel Jeuland, Law Professor, Sorbonne Law School, University of Paris 1 Panthéon-Sorbonne, France and Vincent Smith, Assistant Professor, ESCP Business School, UK and France