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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 Oxford Life Member, Wolfson College, Oxford Erasmus Professor of the Fundamentals of Private Law

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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 Oxford

Life Member, Wolfson College, Oxford

Erasmus Professor of the Fundamentals of Private Law

Erasmus University, Rotterdam

collective redress
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
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
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
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
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
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?
issues
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
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
What are we trying to do?First principles
  • Set standards of behaviour
  • Prevent things going wrong (infringement)
  • Put things right (restoration)
three pillar model

Three Pillar Model

Regulation

ADR

Private Litigation

the new integrated model
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