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CONSUMER ADR and COLLECTIVE REDRESS Professor Dr Christopher Hodges

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

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  1. 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

  2. Collective Redress Problem: How to deal with mass problems? Fact: The most familiar technique within civil procedure is the U.S. class action

  3. 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…

  4. Private Enforcement – of private rights and public norms • Encourage everyone to enforce • Align substantive law • Remove economic and technical barriers • Insert economic incentives

  5. 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

  6. 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

  7. 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?

  8. Judicial need: origins and sectors

  9. 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

  10. 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

  11. What are we trying to do?First principles • Set standards of behaviour • Prevent things going wrong (infringement) • Put things right (restoration)

  12. Three Pillar Model Regulation ADR Private Litigation

  13. 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

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