US Class Actions: Promise and Reality
The US class action is the best-known tool of civil procedure for enforcement of mass private rights. It is intended to achieve judicial and procedural economy in civil procedure, and to exert significant pressure on corporate defendants to observe the law. This piece summarises the major empirical evidence on how the mechanism works. It confirms extensive enforcement of law. It also identifies issues of selectivity of case types (especially securities cases brought by investors), high transactional costs and reductions in sums received by claimants, the risk that high economic factors distort the legal merits of settlements, the limited evidence on evaluating the legal merits of outcomes, forum shopping, and aspects of conflicts of interest that have been criticised by European politicians as abusive. The piece notes that these features are predictable consequences of the policy of encouraging widespread private enforcement of law by incentivising intermediaries and reducing risk to claimants. Various questions are noted in relation to the future of collective redress in the different context of the European legal order.
Different Regulatory Approaches to Risk Management of GMOs in the EU and the US
Trade in genetically modified organisms (GMOs) is being discussed under the negotiated draft of the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US due to different regulatory approaches to the risk management of GMOs on both sides of the Atlantic. The aim of this paper is to examine whether the EU's precautionary principle can be reconciled with the US science-based approach in such a way as to avoid future trade disputes between the EU and the US within the World Trade Organization (WTO), where the reluctant approach of the EU with respect to GMOs was challenged by the US in the past before the Dispute Settlement Body. Even though the EU has authorized some GMOs to be marketed, they have to be labelled properly unless they are contained in foodstuffs as trace elements only. In the US, on the contrary, the labelling of GMOs is not mandatory and proceeds on a voluntary basis. Since the EU aims at maintaining a high level of consumer protection, it believes that consumers are entitled to be informed about the origin of the foodstuffs they are buying, thus shifting the precautionary decision from supranational to individual level.
European Collective Action: Towards Coherence?
Collective action procedures exist in many jurisdictions. The European Commission's policy goal is to harmonize collective redress in consumer and competition law, to improve access to justice, and to enhance deterrence against unlawful commercial practices. A European collective action process should include sufficient safeguards against abusive litigation, without compromising the procedure's effectiveness. This article considers which safeguards might be appropriate, drawing on comparative examples from national civil justice systems within and outside the European Union. It concludes that national idiosyncrasies as well as Commission policy aims should inform the design of a European collective action mechanism. Abusive litigation will not be prevented if safeguards are weak or poorly targeted, but highly restrictive safeguards will create insurmountable barriers to justice; both approaches could undermine existing national collective action processes. An ill-conceived collective action process could exacerbate rather than ameliorate disparities in access to justice across Member States. Alternative dispute resolution schemes may allow a more flexible approach, accommodating national differences, and so could potentially be effective in delivering the Commission's primary policy aims in a coherent way.