|
Figures
|
xvii |
|
Tables
|
xix |
|
Contributors
|
xxi |
|
Preface
|
xxiii |
|
Acknowledgments
|
xxv |
|
Abbreviations
|
xxvii |
|
1 Access to justice and collective actions: ‘Florence‘ and beyond
Stefan Wrbka, Steven Van Uytsel, and Mathias M. Siems
|
1 |
|
Introduction
|
1 |
|
The Florence Project and access to justice
|
3 |
|
From ‘diffuse’ to ‘multilayer’ interests
|
8 |
|
The role of collective actions in the context of multilayer interests
|
10 |
|
Structure of and contributions to this book
|
12 |
|
Conclusion
|
19 |
|
Part I. Setting the Stage
|
21 |
|
2 European consumer protection law: Quo vadis? – thoughts on the compensatory collective redress debate
Stefan Wrbka
|
23 |
|
Introduction
|
23 |
|
Multilayer interests
|
24 |
|
Access to justice
|
27 |
|
Redress tools
|
31 |
|
Green Paper on Collective Consumer Redress
|
38 |
|
The way(s) forward
|
42 |
|
Conclusion
|
54 |
|
3 Collective actions in a competition law context – reconciling multilayer interests to enhance access to justice?
Steven Van Uytsel
|
57 |
|
Introduction
|
57 |
|
Access to justice and collective actions
|
60 |
|
The justice concepts envisioned by law enforcement
|
60 |
|
Access to justice as redress for harm
|
61 |
|
Harm in a competition law context
|
63 |
|
Harm determined by the protective scope of competition law
|
63 |
|
The stakeholders in competition law infringements
|
67 |
|
Relationships among the stakeholders
|
70 |
|
Multilayer interests among the stakeholders
|
70 |
|
Tensions among the multilayer interests
|
72 |
|
Collective actions in a competition law context
|
73 |
|
Reconciling tensions through collective actions
|
75 |
|
Alleviating tension through joinder procedures or test cases
|
75 |
|
Representative actions’ influence on tension among individual interests
|
76 |
|
A tension too big for class actions
|
78 |
|
The tension between individual interests and the public interest
|
81 |
|
Compensatory justice and the impediment of legal standing
|
81 |
|
The stakeholders and legal standing
|
82 |
|
Competitors
|
82 |
|
Direct purchasers
|
83 |
|
Indirect purchasers
|
84 |
|
Umbrella customers
|
84 |
|
Deadweight loss customers
|
85 |
|
Creditors, shareholders, employees and suppliers
|
86 |
|
Collective actions and compensatory justice
|
86 |
|
What about deterrence?
|
87 |
|
Hybrid enforcement mechanisms
|
89 |
|
Conclusion
|
91 |
|
4 Private enforcement of directors’ duties: Derivative actions as a global phenomenon
Mathias M. Siems
|
93 |
|
Introduction
|
93 |
|
The problem of enforcing directors’ duties
|
94 |
|
Derivative actions in six countries
|
96 |
|
The United States, Japan and France: more similarities than differences?
|
97 |
|
The United Kingdom, China and Germany: do the new laws make a difference?
|
101 |
|
Discussion: convergence and legal families
|
105 |
|
Derivative actions in twenty-five countries
|
106 |
|
Methodology and dataset
|
107 |
|
The development of the law between 1995 and 2005
|
109 |
|
Legal families, complements and substitutes
|
111 |
|
Conclusion
|
115 |
|
Part II. Cross-continental perspectives on collective actions
|
117 |
|
5 From peasant to shareholder: Divergent paths of group litigation in Tokugawa Japan and England
Sean Mcginty
|
119 |
|
Introduction
|
119 |
|
Feudal origins: the cases of Martin and Usuha
|
122 |
|
The issues of group litigation
|
122 |
|
Martin's case
|
123 |
|
The Usuha case
|
123 |
|
A common heritage?
|
125 |
|
New groups: joint stock companies and kabunakama
|
127 |
|
English joint stock companies
|
128 |
|
Kabunakama
|
130 |
|
Explaining the difference
|
134 |
|
The Tokugawa legal system
|
134 |
|
The nature of the kabunakama
|
137 |
|
Social and political context
|
138 |
|
The difference
|
139 |
|
Conclusion
|
141 |
|
6 Reconciling multilayer interests in environmental law: Access to justice in environmental matters in the European Union and the United States
Monika Hinteregger
|
143 |
|
Access to justice as a means to reconcile multilayer interests in the protection of the environment
|
143 |
|
The public interest: protection of the environment as a public duty
|
143 |
|
The private interest: access to justice for individual persons
|
143 |
|
Reconciling individual and collective interests: access to justice for environmental organizations
|
147 |
|
Collective actions in the environmental law of the European Union
|
148 |
|
The Aarhus convention and its implementation in EU law
|
148 |
|
Aarhus convention
|
148 |
|
Implementation acts
|
149 |
|
Collective actions
|
151 |
|
The 2004 environmental liability directive
|
153 |
|
The availability of collective actions under U.S. law
|
154 |
|
The public trust doctrine and claims for natural resource damage
|
154 |
|
Citizen suits
|
157 |
|
Class actions
|
160 |
|
Comparison and conclusion
|
161 |
|
Outlook: collective action in environmental torts
|
164 |
|
Part III. A need to enhance collective actions in Japan?
|
167 |
|
7 Recent problems of group rights protection for consumers in Japan
Kunihiro Nakata
|
169 |
|
Introduction – localization of the problem
|
169 |
|
The actual state: the system for relief of consumer group damages
|
171 |
|
The debate about a group action system
|
173 |
|
Different types of collective claims
|
173 |
|
The ‘opt-out solution’
|
174 |
|
The authorization for the representative plaintiff
|
175 |
|
The affected individual's right to choose
|
176 |
|
Individuality of claims
|
176 |
|
The problem of money distribution
|
177 |
|
Payment for pain and suffering as a sanction
|
178 |
|
The opt-in solution
|
178 |
|
The basic structure of the opt-in solution
|
178 |
|
Problematic points
|
178 |
|
The two-step solution
|
179 |
|
The meaning of the basic type
|
179 |
|
Problematic points
|
179 |
|
The claim for skimming off unjust enrichment
|
180 |
|
Other problems – the structure surrounding qualified consumer organizations
|
180 |
|
Conclusion
|
181 |
|
8 Can collective actions be a solution to improve access to justice in Japan? Examination of measures to enhance the private enforcement of competition law in Japan
Akinori Uesugi
|
184 |
|
Introduction
|
184 |
|
Importance of private enforcement of competition law
|
185 |
|
Evaluation of public enforcement in Japan
|
185 |
|
Public enforcement record of cartel regulations
|
185 |
|
Trends in public enforcement of cartel provisions
|
186 |
|
Amendment of the AMA in 1977
|
189 |
|
Sanctions on cartels
|
189 |
|
Evaluation of private enforcement in Japan
|
192 |
|
General picture of private enforcement in Japan
|
192 |
|
AMA Article 25 suits
|
192 |
|
Article 709 civil code suits
|
194 |
|
Injunction suits
|
194 |
|
Concentration of enforcement power in the JFTC and THC
|
195 |
|
Why is the enforcement power concentrated in the JFTC and THC?
|
195 |
|
Gradually reduced concentration of enforcement powers
|
197 |
|
Changes to the previous systems
|
197 |
|
Analysis
|
199 |
|
Comparison with EU modernization reform
|
200 |
|
Relationship between the JFTC's fact finding and the court's fact finding
|
201 |
|
Finding of facts in cases decided by recommendation decisions
|
201 |
|
Recommendation decisions
|
202 |
|
Consent decisions
|
204 |
|
Changes to the recommendation decision system in 2005 and their meaning for private enforcement
|
204 |
|
Increase in cases concluded after hearing proceedings
|
205 |
|
Are current damage awards by courts sufficient to recover damages?
|
207 |
|
Amendment of Article 84 and its meaning for private enforcement
|
209 |
|
Possible impacts of eliminating the JFTC hearing proceedings on private enforcements in Japan
|
210 |
|
Elimination of Article 70–15 and its possible effects on private enforcement in Japan
|
211 |
|
The role of the JFTC in facilitating private damage suits
|
212 |
|
Impacts on the right to litigate
|
212 |
|
Measures to encourage private enforcement of competition law in Japan
|
214 |
|
Reasons for inactive private enforcement
|
214 |
|
Situation
|
214 |
|
Analysis
|
214 |
|
Introduction of representative suits by qualified associations via the excessive premium and misrepresentation act violations
|
216 |
|
Conclusion
|
216 |
|
Part IV. Collective enforcement of company and securities law
|
219 |
|
9 Does more litigation mean more justice for shareholders? the case of derivative actions in Vietnam
Quynh Thuy Quach
|
221 |
|
Introduction
|
221 |
|
Newly adopted litigation rights – more ways for oppressed shareholders to access Justice
|
223 |
|
Poor enforcement and the gap between promises of law and reality
|
223 |
|
More litigation rights for shareholders – attempt by lawmakers to widen the way for shareholder access to Justice
|
226 |
|
Derivative action – shareholders’ ‘weapon for others’ interests
|
229 |
|
Forgotten derivative suits in their origin country
|
229 |
|
Driving forces in the emergence of derivative suits in East Asia Countries
|
231 |
|
The case against more litigation in Vietnam
|
234 |
|
Insufficiencies of the court
|
234 |
|
Critical paucity of judges
|
234 |
|
Capacity of judges is insufficient
|
235 |
|
Court judgments are commonly unenforceable
|
235 |
|
Disfavour of litigation by shareholders
|
236 |
|
An immature legal profession and the hurdle of litigation costs
|
238 |
|
Small lawyer population
|
238 |
|
Limited litigation skills
|
239 |
|
Litigation costs poorly incentivize lawyers to initiate cases
|
239 |
|
Policy implications
|
241 |
|
Litigation as hardship route to justice for shareholders
|
241 |
|
Less costly mechanisms as possible alternatives for litigation
|
242 |
|
Strong regulator
|
242 |
|
Arbitrators
|
243 |
|
Conclusion
|
244 |
|
10 The United States Supreme Court and implied private cause of actions under SEC Rule 10b-5: The politics of class actions
Arthur R. Pinto
|
245 |
|
Introduction
|
245 |
|
The development of an implied private cause of action under Rule 10b-5
|
248 |
|
The Supreme Court and Rule 10b-5 class actions
|
252 |
|
The Burger Court (1969–1986)
|
254 |
|
An important exception
|
258 |
|
The Rehnquist Court (1986–2005)
|
260 |
|
Congressional action
|
262 |
|
The Roberts Court (2005–present)
|
265 |
|
Conclusion
|
270 |
|
Part V. Indirect purchasers and collective actions
|
273 |
|
11 Indirect purchaser suits under the class action fairness act: Reconciling multilayer interests in antitrust litigation
William H. Page
|
275 |
|
Introduction
|
275 |
|
Class certification in pre-CAFA indirect purchaser litigation
|
279 |
|
Class certification in indirect purchaser litigation after CAFA
|
282 |
|
The continuing failure of indirect purchaser suits
|
293 |
|
Conclusion
|
298 |
|
12 Collective actions by indirect purchasers: Lessons from the Japanese oil cartel cases
Simon Vande Walle
|
299 |
|
Introduction
|
299 |
|
Relevance of Japan's experience with indirect purchaser litigation
|
300 |
|
Overview of the three oil cartel cases
|
302 |
|
The kerosene cartel
|
303 |
|
The consumers go to court
|
305 |
|
The procedural mechanism: the Japanese class action
|
306 |
|
A bitter settlement in the first Tokyo case
|
308 |
|
Rejection by the Supreme Court in the two other cases
|
309 |
|
The merits of indirect purchaser litigation
|
312 |
|
Access to justice
|
312 |
|
Direct purchasers do not sue
|
313 |
|
The problems with indirect purchaser litigation
|
314 |
|
Costly and inefficient: ‘it's just not worth it’
|
314 |
|
Attorneys’ fees for plaintiffs exceeded the potential recovery
|
315 |
|
The total costs caused by the litigation exceeded the potential recovery
|
316 |
|
Lengthy and complex
|
318 |
|
Implications for indirect purchaser litigation in the EU
|
321 |
|
Indirect purchaser litigation is unlikely to be effective with an opt-in mechanism and traditional rules on causation and damages
|
321 |
|
Possible solutions
|
323 |
|
First option: an opt-out class action
|
324 |
|
Second option: no standing for indirect purchasers
|
326 |
|
Annex: translation of the Supreme Court Judgment in the Tsuruoka oil cartel case
|
327 |
|
Part VI. Recent developments in and future perspectives on collective actions
|
339 |
|
13 Collective enforcement: European prospects in light of the Swedish experience
Annina H. Persson
|
341 |
|
Introduction
|
341 |
|
Structure and purpose of this chapter
|
343 |
|
The Swedish group proceedings act
|
346 |
|
The National Board for consumer complaints
|
350 |
|
Group action at ARN
|
350 |
|
KO as representative for individual consumers
|
354 |
|
Evaluation of the Swedish group proceedings act
|
355 |
|
The Swedish view on the green paper on collective redress
|
357 |
|
Collective redress on its way?
|
359 |
|
Conclusion
|
362 |
|
14 Transnational class settlements: Lessons from Converium
Benoît Allemeersch
|
364 |
|
Introduction
|
364 |
|
The Dutch class settlement
|
366 |
|
The path leading to Converium
|
366 |
|
The Converium case
|
368 |
|
The international Converium settlement and the Dutch court ruling
|
368 |
|
The Dutch Courts’ arguments in favour of jurisdiction
|
369 |
|
The obligation to pay and the applicability of Article 5(1)
|
371 |
|
Forum Connexitatis
|
374 |
|
Is a forum clause the solution?
|
376 |
|
Converium, the aftermath
|
378 |
|
Access to justice
|
379 |
|
Multilayer interests
|
380 |
|
Conclusion
|
382 |
|
15 The impetus for class actions reform in England arising from the competition law sector
Rachael Mulheron
|
385 |
|
Introduction
|
385 |
|
The impetus for class actions reform in the competition law sector from a judicial and litigant perspective
|
387 |
|
Faltering attempts to use the representative rule
|
387 |
|
A representative statutory action, under the Competition Act 1998, is of limited utility
|
391 |
|
OFT-imposed fines do not lead to many subsequent private actions for compensation
|
394 |
|
The ‘missing’ competition law cases in England
|
396 |
|
The need for ‘add-on’ English classes to U.S. federal class actions for competition law infringements
|
398 |
|
Important commentary by the President of the English Competition Appeal Tribunal
|
399 |
|
The impetus for class actions reform in the competition law sector: an examination of the governmental position
|
400 |
|
The OFT's curtailed function
|
400 |
|
Political admissions that there is a problem, both in England and in the EU
|
401 |
|
The Civil Justice Council's recommendation and the Ministry of Justice's response
|
406 |
|
The certification hurdles for competition law collective actions
|
407 |
|
Conclusion
|
411 |
|
Index
|
413 |
