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In recent years collective litigation procedures have spread across
the globe, accompanied by hot controversy and normative debate. Yet
virtually nothing is known about how these procedures operate in
practice. Based on extensive documentary and interview research,
this volume presents the results of the first comparative
investigation of class actions and group litigation 'in action'.
Produced by a multinational team of legal scholars, this book spans
research from ten different countries in the Americas, Europe, Asia
and the Middle East, including common law and civil law
jurisdictions. The contributors conclude that to understand how
class actions work in practice, one needs to know the cultural
factors that shape claiming, the financial arrangements that enable
or impede litigation, and how political actors react when mass
claims erupt. Substantive law and procedural rules matter, but
culture, economics and politics matter at least as much. This book
will be of interest to students and scholars of law, business and
politics. It will also be of use to public policy makers looking to
respond to mass claims; financial analysts looking to understanding
the potential impact of new legal instruments; and global lawyers
who litigate transnationally. Contributors: A. Barroilhet, C.
Cameron, N. Creutzfeldt, M.A. Gomez, A. Halfmeier, D.R. Hensler, C.
Hodges, K.-C. Huang, J. Kalajdzic, A. Klement, B. Stier, E.
Thornburg, I. Tzankova, S. Voet
The landscape of mass litigation in Europe has changed impressively
in recent years, and collective redress litigation has proved a
popular topic. Although much of the literature focuses on the
political context, contentious litigation, or how to handle
cross-border multi-party cases, this book has a different focus and
a fresh approach. Taking as a starting-point the observation that
mass litigation claims are a 'AEonuisance'AEo for both parties and
courts, the book considers new ways of settling mass disputes.
Contributors from across the globe, Australia, Canada, China,
Europe and the US, point towards an international convergence of
the importance of settlements, mediation and alternative dispute
resolution (ADR). They question whether the spread of a culture of
settlement signifies a trend or philosophical desire for less
confrontation in some societies, and explore the reasons for such a
trend. Raising a series of questions on resolving mass disputes,
and fuelling future debate, this book will provide a challenging
and thought-provoking read for law academics, practitioners and
policy-makers.
This ground-breaking book addresses the challenge of regulatory
delivery, defined as the way that regulatory agencies operate in
practice to achieve the intended outcomes of regulation. Regulatory
reform is moving beyond the design of regulation to address what
good regulatory delivery looks like. The challenge in practice is
to operate a regulatory regime that is both appropriate and
effective. Questions of how regulations are received and applied by
those whose behaviour they seek to control, and the way they are
enforced, are vital in securing desired regulatory outcomes. This
book, written by and for practitioners of regulatory delivery,
explains the Regulatory Delivery Model, developed by Graham Russell
and his team at the UK Department for Business, Energy and
Industrial Strategy. The model sets out a framework to steer
improvements to regulatory delivery, comprising three prerequisites
for regulatory agencies to be able to operate effectively
(Governance Frameworks, Accountability and Culture) and three
practices for regulatory agencies to be able to deliver societal
outcomes (Outcome Measurement, Risk-based Prioritisation and
Intervention Choices). These elements are explored by an
international group of experts in regulatory delivery reform, with
case studies from around the world. Regulatory Delivery is the
first product of members of the International Network for Delivery
of Regulation.
This book explores how concerns can be raised about the NHS, why
raising concerns hasn't always improved standards, and how a
no-fault open culture approach could drive improvements. The book
describes a wide range of mechanisms for raising concerns about the
NHS, including complaints, the ombudsman, litigation, HSIB, and the
major inquiries since 2000, across the various UK jurisdictions.
The NHS approach is contextualised within the broader societal
developments in dispute resolution, accountability, and regulation.
The authors take a holistic view, and outline practical solutions
for reforming how the NHS responds to problems. These should
improve the situation for those raising concerns and for those
working within the NHS, as well as providing cost savings. The
no-fault approaches proposed in the book provide long-term
sustainable solutions to systemic problems, which are particularly
timely given the impact of the COVID-19 pandemic on the NHS. The
book will be of interest to academics, researchers, ADR
practitioners, practising lawyers, and policy makers.
This ground-breaking book takes a fresh look at potential
non-litigation solutions to providing personal injury compensation.
It is the first systematic comparative study of such a large number
- over forty - of personal injury compensation schemes. It covers
the drivers for their creation, the frameworks under which they
operate, the criteria and thresholds used, the compensation
offered, the claims process, statistics on throughput and costs,
and analysis of financial costings. It also considers and compares
the successes and failings of these schemes. Many different types
of redress providers are studied. These include the comprehensive
no-blame coverage offered by the New Zealand Accident Compensation
Corporation; the widely used Patient, Pharmaceutical, Motor
Accident and Workers Compensation Insurance systems of the Nordic
states; the far smaller issue-focused schemes like the UK
Thalidomide and vCJD Trusts; vaccine damage schemes that exist in
many countries; as well as motor vehicle schemes from the USA.
Conclusions are drawn about the functions, essential requirements,
architecture, scope, operation and performance of personal injury
compensation systems. The relationships between such schemes, the
courts and regulators are also discussed, and both calls and need
for reforms are noted. Noting the wide calls for reform of NHS
medical negligence litigation within the UK, and its replacement
with a no blame approach, the authors' findings outline options for
future policy in this area. This major contribution builds on
general shifts from courts to ADR, and from blame to no blame in
regulation, and is a work that has the potential to have a major
impact on the field of personal injury redress. With contributions
by Raymond Byrne, Claire Bright, Shuna Mason, Magdalena Tulibacka,
Matti Urho, Mary Walker and Herbert Woopen.
How do we cooperate – in social, local, business, and state
communities? This book proposes an Outcome-Based Cooperative Model,
in which all stakeholders work together on the basis of trust and
respect to achieve shared aims and outcomes. The Outcome-Based
Cooperative Model is built up from an extensive analysis of
behavioural and social psychology, genetic anthropology, research
into behaviour and culture in societies, organisations, regulation,
and enforcement. The starting point is acceptance that humanity is
facing ever larger risks, which are now systemic and even
existential. To overcome the challenges, humans need to cooperate
more, rather than compete, alienate, or draw apart. Answering how
we do that requires basing ourselves, our institutions, and systems
on relationships that are built on trust. Trust is based on
evidence that we can be trusted to behave well (ethically), built
up over time. We should aim to agree common goals and outcomes,
moderating those that conflict, produce evidence that we can be
trusted, and examine our performance in achieving the right
outcomes, rather than harmful ones. The implications are that we
need to do more in rebasing our relationships in local groupings,
business organisations, regulation, and dispute resolution. The
book examines recent systems and developments in all these areas,
and makes proposals of profound importance for reform. This is a
new blueprint for liberty, solidarity, performance, and
achievement.
This book examines the theories and practice of how to control
corporate behaviour through legal techniques. The principal
theories examined are deterrence, economic rational acting,
responsive regulation, and the findings of behavioural psychology.
Leading examples of the various approaches are given in order to
illustrate the models: private enforcement of law through
litigation in the USA, public enforcement of competition law by the
European Commission, and the recent reform of policies on public
enforcement of regulatory law in the United Kingdom. Noting that
behavioural psychology has as yet had only limited application in
legal and regulatory theory, the book then analyses various
European regulatory structures where behavioural techniques can be
seen or could be applied. Sectors examined include financial
services, civil aviation, pharmaceuticals, and workplace health
& safety. Key findings are that 'enforcement' has to focus on
identifying the causes of non-compliance, so as to be able to
support improved performance, rather than be based on fear
motivating complete compliance. Systems in which reporting is
essential for safety only function with a no-blame culture. The
book concludes by proposing an holistic model for maximising
compliance within large organisations, combining public regulatory
and criminal controls with internal corporate systems and external
influences by stakeholders, held together by a unified core of
ethical principles. Hence, the book proposes a new theory of
ethical regulation.
This is the first systematic comparative study into how consumer
alternative dispute resolution (ADR) systems work, the differing
national architectures within which they operate, and how they can
be improved. It describes ADR schemes in France, Germany,
Lithuania, the Netherlands, Poland, Slovenia, Spain, Sweden, and
the UK, as well as emerging pan-EU dispute resolution schemes. The
use of techniques of mediation, conciliation, and adjudication are
noted. The book also covers EU measures on consumer ADR, and the
2011 proposals for legislation on ADR and online dispute
resolution. Data on volume, cost, and duration of ADR schemes are
compared, both between different systems and with courts. The
findings underpin EU and national developments, and outline options
for future policy. Proposals are included for the functions, scope,
performance, essential requirements, architecture, and operation of
ADR systems. The relationships between ADR, courts, and regulators
are discussed, and the need for reforms are noted. This is a
ground-breaking work that will have a major impact on European
legal systems. (Series: Civil Justice Systems)
This book examines the principal trends and policy goals relating
to collective redress mechanisms in Europe. It identifies three
principal areas in which procedures and debates have emerged:
within consumer protection and competition law, and from some
national court systems. It identifies differing national models of
public and private enforcement in consumer protection law in the
Member States, and the search for more efficient and inclusive
procedures that would deliver increased access to justice and
enhanced compliance with desired standards (arguably through
deterrence). A sequence of case studies illustrates the pros and
cons of differing models. Lessons are also drawn from the
experience of class actions in the USA over the transactional costs
of private law mechanisms, and adverse economic consequences. The
various policy strands are unravelled and prioritised, and options
for the future are recommended. The American 'private enforcement'
model is contrasted with the more prevalent European public and
mediated enforcement tradition. New developments involving
Ombudsmen and oversight of compensation by public enforcement
bodies are identified, and underlying theories of restorative
justice and responsive regulation discussed. Public, private,
formal, informal, ADR and voluntary methodologies are evaluated
against criteria, and it is concluded that the optimal options for
collective redress in Europe involve a combination of approaches,
with priority given to public and voluntary solutions over private
court-based mechanisms. "Reform of collective redress is the
hottest topic in European civil justice today. Dr. Hodges, one of
the world's leading experts in the field, provides a deeply
informed evaluation of the current debates. Illustrative case
studies drawn from both consumer protection and competition areas
enrich and ground his provocative analysis of the complex issues at
stake making this a "must-have" book for every practitioner,
academic and policy-maker in the field". Professor Jane Stapleton,
Australian National University, and University of Texas, Austin.
This book explains the concepts of Ethical Business Practice (EBP)
and Ethical Business Regulation (EBR), a new paradigm in compliance
and enforcement based on behavioural science and ethics. EBR
provides the basis for an effective relationship between a business
and its regulators, resulting in better outcomes for both. EBR is
attracting extensive attention from regulators and businesses
around the world. The UK Government's 2017 Regulatory Futures
Review draws on EBR as the foundation for its policy of 'regulatory
self-assurance'. EBR draws on findings from behavioural science,
responsive regulation, safety and business and integrity management
to create a practical and holistic approach. Examples include the
open culture that is essential for civil aviation safety, the
Primary Authority agreements between regulators and national
businesses, and feedback mechanisms provided by market vigilance
systems and sectoral consumer ombudsmen. This book provides an
essential blueprint for sustainable business and effective future
regulation.
How do we cooperate – in social, local, business, and state
communities? This book proposes an Outcome-Based Cooperative Model,
in which all stakeholders work together on the basis of trust and
respect to achieve shared aims and outcomes. The Outcome-Based
Cooperative Model is built up from an extensive analysis of
behavioural and social psychology, genetic anthropology, research
into behaviour and culture in societies, organisations, regulation,
and enforcement. The starting point is acceptance that humanity is
facing ever larger risks, which are now systemic and even
existential. To overcome the challenges, humans need to cooperate
more, rather than compete, alienate, or draw apart. Answering how
we do that requires basing ourselves, our institutions, and systems
on relationships that are built on trust. Trust is based on
evidence that we can be trusted to behave well (ethically), built
up over time. We should aim to agree common goals and outcomes,
moderating those that conflict, produce evidence that we can be
trusted, and examine our performance in achieving the right
outcomes, rather than harmful ones. The implications are that we
need to do more in rebasing our relationships in local groupings,
business organisations, regulation, and dispute resolution. The
book examines recent systems and developments in all these areas,
and makes proposals of profound importance for reform. This is a
new blueprint for liberty, solidarity, performance, and
achievement.
This book reviews the techniques, mechanisms and architectures of
the way disputes are processed in England and Wales. Adopting a
comparative approach, it evaluates the current state of the main
different types of dispute resolution systems, including business,
consumer, personal injury, family, property, employment and claims
against the state. It provides a holistic overview of the whole
system and suggests both systemic and detailed reforms. Examining
dispute resolution pathways from users' perspectives, the book
highlights options such as ombudsmen, regulators, tribunals and
courts as well as mediation and other ADR and ODR approaches. It
maps numerous sectoral developments to see if learning might be
spread to other sectors. Several recurrent themes arise, including
the diversification in the use of techniques; adoption of digital,
online and artificial technology; cost and funding constraints; the
emergence of new intermediaries; the need to focus accessibility
arrangements for people and businesses that need help with their
problems; and identifying effective ways for achieving behavioural
change. This timely study analyses the shift from adversarial
legalism to softer means of resolving social problems, and points
to a major opportunity to devise an imaginative and holistic
strategic vision for the jurisdiction.
This book charts the transformative shifts in techniques that seek
to deliver collective redress, especially for mass consumer claims
in Europe. It shows how traditional approaches of class litigation
(old technology) have been eclipsed by the new technology of
regulatory redress techniques and consumer ombudsmen. It describes
a series of these techniques, each illustrated by leading examples
taken from a 2016 pan-EU research project. It then undertakes a
comparative evaluation of each technique against key criteria, such
as effective outcomes, speed, and cost. The book reveals major
transformations in European legal systems, shows the overriding
need to view legal systems from fresh viewpoints, and to devise a
new integrated model.
This book contains the first major comparative study of litigation
costs and methods of funding litigation in more than 30
jurisdictions. It was linked with the most comprehensive review of
costs ever carried out in England and Wales by Lord Justice Jackson
in 2009 and benefited from the assistance of leading practitioners
around the globe. The study analyses the principles and rules that
relate to paying courts, witnesses and lawyers, and the rules on
cost shifting, if any. It also notes the major ways in which
litigation can be funded, identifying the global trend on
contraction of legal aid, the so far limited spread of contingency
fees, and the growing new phenomenon of private third party
litigation funding. The study also presents the results of nine
case studies of typical claim types, so as to give a first overview
comparison of which countries' legal systems are cheaper or more
expensive. The book further contains national chapters with in
depth analysis contributed by scholars in 18 jurisdictions
(Australia, Belgium, Canada, China, Denmark, England & Wales,
France, Germany, Japan, the Netherlands, New Zealand, Poland,
Portugal, Russia, Spain, Switzerland, Taiwan and USA) and a further
chapter on Latin American jurisdictions. 'Dr Hodges, Professor
Vogenauer and Dr Tulibacka have conducted an excellent and thorough
comparative study of litigation costs and funding across a wide
range of jurisdictions ('the Oxford study'). The Oxford study is
important, because it provides both context and background for any
critical examination of our own costs and funding rules... I
commend this book both for its breadth and detail and also for its
percipient commentary. This work will make a valuable contribution
to the debate which lies ahead about how the costs and funding
rules of England and Wales should be reformed in order to promote
access to justice.' From the Foreword by Lord Justice Jackson,
Royal Courts of Justice, 16th July 2010
This groundbreaking volume of The ANNALS provides the first
overview of class action laws and related mechanisms around the
world. It features 30 "country reports" by leading scholars,
describing the adoption, characteristics and consequences to date
of class action and non-class group litigation procedures ranging
across North and Latin America, Australia, Asia and Europe. What
were once seen as singular disputes between individuals (or between
an individual and a corporation) are now viewed increasingly as
group struggles against multinational corporations and other global
institutions. This escalating trend of class actions and group
litigation in private civil court cases extends well beyond the
interest of lawyers. The social, economic, and political
ramifications of permitting class actions are potentially vast-not
just in the United States, but increasingly throughout the world,
as in less than a decade the number of countries that permit
representative litigation by private actors has multiplied
dramatically. The United States has led the way in these
developments. Adopted by the U.S. federal judiciary in 1966, group
litigation made it easier for individuals to come forward to claim
remedies, including money damages, on behalf of large groups of
similarly affected individuals. Class actions dramatically shift
the balance of power between the "haves" and the "have-nots." Yet
as this trend has grown in the United States. and has taken hold
around the globe, little analysis has been done on the costs or
outcomes of group litigation - and even less is known about
litigants' and lawyers' choices to prosecute class actions. There
is impassioned debate over the cost and benefits of class
litigation in the United States. Does it impose costs on economic
factors that are larger than any benefit it creates - thereby
diminishing social welfare? By placing responsibility for social
reform and public policy in the hands of appointed judges or lay
jurors - rather than elected legislators - does it produce outcomes
that are not supported by the majority of citizens? In December
2007, Stanford Law School and the Oxford Centre for Socio-Legal
Studies organized an international conference that studied the
global spread of class actions and group litigation procedures.
Scholars, jurists, and practitioners from around the world gathered
to discuss and debate the use of group litigation procedures and
initiate a research project on the evolution of class actions and
aggregate litigation worldwide. This volume of The ANNALS is one
result of that conference. Students, scholars and policymakers will
find this anthology of reports to be an essential overview,
providing a solid understanding of the effects of class actions
around the globe.
This groundbreaking volume of The ANNALS provides the first
overview of class action laws and related mechanisms around the
world. It features 30 "country reports" by leading scholars,
describing the adoption, characteristics and consequences to date
of class action and non-class group litigation procedures ranging
across North and Latin America, Australia, Asia and Europe. What
were once seen as singular disputes between individuals (or between
an individual and a corporation) are now viewed increasingly as
group struggles against multinational corporations and other global
institutions. This escalating trend of class actions and group
litigation in private civil court cases extends well beyond the
interest of lawyers. The social, economic, and political
ramifications of permitting class actions are potentially vast-not
just in the United States, but increasingly throughout the world,
as in less than a decade the number of countries that permit
representative litigation by private actors has multiplied
dramatically. The United States has led the way in these
developments. Adopted by the U.S. federal judiciary in 1966, group
litigation made it easier for individuals to come forward to claim
remedies, including money damages, on behalf of large groups of
similarly affected individuals. Class actions dramatically shift
the balance of power between the "haves" and the "have-nots." Yet
as this trend has grown in the United States. and has taken hold
around the globe, little analysis has been done on the costs or
outcomes of group litigation - and even less is known about
litigants' and lawyers' choices to prosecute class actions. There
is impassioned debate over the cost and benefits of class
litigation in the United States. Does it impose costs on economic
factors that are larger than any benefit it creates - thereby
diminishing social welfare? By placing responsibility for social
reform and public policy in the hands of appointed judges or lay
jurors - rather than elected legislators - does it produce outcomes
that are not supported by the majority of citizens? In December
2007, Stanford Law School and the Oxford Centre for Socio-Legal
Studies organized an international conference that studied the
global spread of class actions and group litigation procedures.
Scholars, jurists, and practitioners from around the world gathered
to discuss and debate the use of group litigation procedures and
initiate a research project on the evolution of class actions and
aggregate litigation worldwide. This volume of The ANNALS is one
result of that conference. Students, scholars and policymakers will
find this anthology of reports to be an essential overview,
providing a solid understanding of the effects of class actions
around the globe.
This book examines the European Community legislation that
regulates the safety of consumer products. Hodges surveys the
extent to which this legislation aims to and succeeds in achieving
safety for a wide range of products. There are different legal
requirements for medicines, machines, electronics, toys and so on,
which employ different regulatory mechanisms, including
pre-marketing assessment, provision of information, control of the
manufacturing environment, post-marketing obligations on producers
and authorities, and obligations on distributors and users. Hodges
compares the various mechanisms relating to medicinal products,
products covered by 'New Approach' Directives, cosmetics, biocides,
tobacco products, and consumer products covered by the General
Product Safety Directive, and asks why particular mechanisms are
used, or not used for different products. The book then moves on to
consider what is meant by product 'safety', demonstrating the
relativity of this concept. Hodges highlights an important problem:
that consumers, the media, and experts can all have differing ideas
on the level of safety that is relevant and acceptable. Hodges
contends that the systems are in need of review, to ensure they
work effectively and give value for money. In some cases, there is
an need for more or less control. He argues for more systematic
collection of safety data, and for consistecy in surveillance and
enforcement mechanisms across Europe, pointing towards the need for
a European Product Safety Agency.
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