Ius Gentium: Comparative Perspectives on Law and Justice
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Ius Gentium: Comparative Perspectives on Law and Justice Volume 89 Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Editorial Board Members Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil Aniceto Masferrer, University of Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France Gabriël A. Moens, Curtin University, Perth, Australia Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, The Netherlands
Ius Gentium is a book series which discusses the central questions of law and justice from a comparative perspective. The books in this series collect the contrasting and overlapping perspectives of lawyers, judges, philosophers and scholars of law from the world’s many different jurisdictions for the purposes of comparison, harmonisation, and the progressive development of law and legal institutions. Each volume makes a new comparative study of an important area of law. This book series continues the work of the well-known journal of the same name and provides the basis for a better understanding of all areas of legal science. The Ius Gentium series provides a valuable resource for lawyers, judges, legisla- tors, scholars, and both graduate students and researchers in globalisation, compar- ative law, legal theory and legal practice. The series has a special focus on the development of international legal standards and transnational legal cooperation. More information about this series at http://www.springer.com/series/7888
Alan Uzelac • Stefaan Voet Editors Class Actions in Europe Holy Grail or a Wrong Trail?
Editors Alan Uzelac Stefaan Voet Faculty of Law KU Leuven University of Zagreb Leuven, Belgium Zagreb, Croatia ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-030-73035-2 ISBN 978-3-030-73036-9 (eBook) https://doi.org/10.1007/978-3-030-73036-9 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Preface
This book addresses one of the topical trends in contemporary judicial systems: the
collectivization of dispute resolution in civil, commercial, and consumer matters.
The contributors to this book were invited to evaluate how various methods of
collective redress function in their social context and to give their assessment on
the direction and the desirability of current developments. The principal motive for
this book was the apparent switch in the general opinion on collective litigation in
Europe. While class actions and similar collective redress procedures were for a long
time dominantly rejected as “non-European” and unnecessary, the recent initiatives
of the European policymakers embraced for the first time a more comprehensive
approach with representative actions that provide both injunctive and compensatory
redress measures. At the same time, the aftermath of some high-profile cases
(e.g. Dieselgate) pointed to the importance of effective judicial processing of
collective harm situations and caused another surge in the interest for European
collective redress mechanisms. However, before an enthusiastic general acceptance,
a number of other issues need to be resolved, both in Europe and in the rest of the
world.
The contributions in this book are collected from leading authors who come not
only from Europe but also from Asia and North and South America. In Europe, the
contributors are covering different legal traditions and geographic locations, from
North and West (Norway, Sweden, UK, Netherlands, and Belgium) to South and
East (France, Italy, and Slovenia). The collected contributions were enriched by an
exchange of views of the authors that took place in May 2019 at the Inter-University
Centre Dubrovnik (IUC) within the Public and Private Justice (PPJ) series of
seminars. The editors are grateful to the IUC and its staff, and in particular to
Mr. Tomislav Kvesić, for their continuing support to high-quality, professional,
and academic debates.
The original ideas and the first drafts of the chapters in this book date from
pre-COVID-19, but most of the editing and production work happened when the
pandemic was at its peak. While this certainly affected the speed of the process, it
also demonstrated that new, innovative approaches to the way courts and judges deal
vvi Preface with challenges of mass harm are sorely needed. In this sense, we believe that the pandemic made this book even more interesting and topical. As editors, we would like to thank a number of people who helped in the production and editing of the present volume. Our gratitude goes in particular to Mr. Randolph W. Davidson and Mr. Edward Frisken for their help in revising the chapters of the non-native English speakers. Dr. Marko Bratković and Mr. Juraj Brozović provided valuable editing assistance. We also express our gratitude to the Springer team for their patience and support that helped us to continue and finalize our work on this project. Zagreb, Croatia Alan Uzelac Leuven, Belgium Stefaan Voet February 2021
Contents
Part I Introduction
Collectivization of European Civil Procedure: Are We Finally
Close to a (Negative) Utopia? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Alan Uzelac and Stefaan Voet
Part II Critical Perspectives on Collective Redress
Evaluating Collective Redress: Models, Evidence, Outcomes and
Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Christopher Hodges
For the Defense: 28 Shades of European Class Actions . . . . . . . . . . . . . . 43
Linda S. Mullenix
Part III Many Faces of Collective Litigation: European Perspectives
The Dawn of Collective Redress 3.0 in France? . . . . . . . . . . . . . . . . . . . 73
Maria José Azar-Baud and Alexandre Biard
From Injunction and Settlement to Action: Collective Redress and
Funding in the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Ianika N. Tzankova and Xandra E. Kramer
Class Actions in Belgium: Evaluation and the Way Forward . . . . . . . . . 131
Stefaan Voet
Class Actions and Group Litigation: A Norwegian Perspective . . . . . . . 165
Maria Astrup Hjort
Group Actions in East-Nordic Legal Culture . . . . . . . . . . . . . . . . . . . . . 177
Laura Ervo
viiviii Contents Rebooting Italian Class Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Elisabetta Silvestri Challenges in Drafting and Applying the New Slovenian Collective Actions Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Aleš Galič and Ana Vlahek The Lessons of Airfreight Cartel: Mechanisms of Coordination of Parallel Collective Lawsuits in Several Jurisdictions? . . . . . . . . . . . . . 249 Jorg Sladič Collective Redress in the EU: Will It Finally Come True? . . . . . . . . . . . 287 Alexandre Biard and Stefaan Voet Part IV Global Perspectives on Collective Redress The State of Reform in First and Second Generation Class Action Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Jasminka Kalajdzic Empirical Data and the Powerful Lessons Learnt About Class Actions in Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 Catherine Piché Collective Redress in Brazil: Success or Disappointment? . . . . . . . . . . . 345 Hermes Zaneti Jr Class Actions and Public Interest Litigation in China . . . . . . . . . . . . . . . 369 Yulin Fu
Editors and Contributors
About the Editors
Alan Uzelac Professor of Law at the University of Zagreb, Croatia, where he
teaches Civil Procedure and Comparative Civil Procedure, Organization of the
Judiciary and Alternative Dispute Resolution. He is Founding Member of the
European Commission for the Efficiency of Justice (CEPEJ) in Strasbourg. He is
Delegate in the UNCITRAL Working Group on Arbitration and Conciliation. He is
Co-director of the Public and Private Justice seminar at the Inter-University Centre,
Dubrovnik, Croatia. He is Director of the research project Transformation of Civil
Justice Under the Influence of Global and Regional Integration Processes.
Stefaan Voet Associate Professor of civil procedure at the University of Leuven
and a Host Professor at the University of Hasselt. He is Programme Affiliate at the
CMS/Swiss Re Research Programme on Civil Justice Systems at the Centre for
Socio-Legal Studies at the University of Oxford. He is Member of the Class Actions
Exchange Network spearheaded by the Universities of Stanford, Oxford, and Til-
burg and affiliate at the Class Action Lab of the University of Montréal. He is also a
member of different working groups of the European Law Institute.
Contributors
Maria Astrup Hjort Faculty of Law, University of Oslo, Oslo, Norway
Maria José Azar-Baud University of Paris-Sud, Paris, France
Alexandre Biard Erasmus University Rotterdam, Rotterdam, The Netherlands
Laura Ervo Örebro University, Örebro, Sweden
ixx Editors and Contributors Yulin Fu Peking University Law School, Beijing, China Aleš Galič Faculty of Law, University of Ljubljana, Ljubljana, Slovenia Christopher Hodges University of Oxford, Oxford, UK Jasminka Kalajdzic Faculty of Law, University of Windsor, Windsor, ON, Canada Xandra E. Kramer Erasmus Universiteit Rotterdam, Rotterdam, Netherlands Universiteit Utrecht, Utrecht, Netherlands Linda S. Mullenix University of Texas, Austin, TX, USA Catherine Piché Faculty of Law, University of Montreal, Montreal, QC, Canada Elisabetta Silvestri Department of Law, University of Pavia, Pavia, Italy Jorg Sladič Faculty of Law, University of Maribor, Maribor, Slovenia Ianika N. Tzankova Tilburg Law School, Tilburg, The Netherlands Alan Uzelac Faculty of Law, University of Zagreb, Zagreb, Croatia Ana Vlahek Faculty of Law, University of Ljubljana, Ljubljana, Slovenia Stefaan Voet KU Leuven, Leuven, Belgium Hermes Zaneti Jr Federal University of Espírito Santo, Vitória, Brazil
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