scholarly journals Attempting—and Failing—to Balance Fairness and Efficiency in the Arbitral System

2021 ◽  
Vol 8 (3) ◽  
pp. 583-605
Author(s):  
Hannah N Myslik
Keyword(s):  
Supreme Court ◽  
Class Action ◽  
Restricted Class ◽  
The Supreme Court ◽  
Fairness And Efficiency ◽  
Fairness Concerns

The Supreme Court has actively expanded the Federal Arbitration Act into realms not originally contemplated by Congress. This harms consumers who are parties to pre-dispute, binding arbitration agreements. If consumers sign a contract containing an arbitration agreement, they may be required to arbitrate everything within the agreement’s scope, including their statutory rights. Simultaneously, the Court has restricted class action arbitration—a device on which consumers have relied when they are forced to arbitrate. The Court’s expansion of arbitration and restriction of class action arbitration has led many to distrust and advocate for changing the arbitral system. Arbitration institutions have directly reacted to the concerns about arbitration by promulgating more rules, procedures, and safeguards to make arbitration fairer for consumers. However, adding rules and procedures is probably not enough to make arbitration proceedings truly fair, and doing so creates a system that is so court-like that arbitration loses its chief benefits—affordability and efficiency. Thus, if the Court continues with its expansive arbitration jurisprudence and its anti-class action arbitration jurisprudence, institutional reaction is an unlikely solution to address arbitration’s fairness concerns.

scholarly journals Environmental Dispute Resolution Through Class Action Lawsuit

2020 ◽  
Vol 1 (1) ◽  
pp. 16
Author(s):  
K. Tjukup ◽  
P.R. A. Potra ◽  
P.A.H. Martana
Keyword(s):  
Supreme Court ◽  
Environmental Protection ◽  
Legal System ◽  
Active Role ◽  
The United States ◽  
Civil Procedure ◽  
Class Action ◽  
Legal Concept ◽  
Procedural Law ◽  
The Supreme Court

The procedural  law  of Class Action  is  a legal  concept  known  in  the Anglo-Saxon  legal  system  (Common  Law). Whilst  this  concept  is  not  recognised   in  the  Continental  European  legal  system  (Civil  Law),  likewise  in  Indonesian  civil procedure  that based on Herzien Inlandsch Reglement (H.I.R) and Rechtsreglement  voor de Buitengewesten  (RBg). Initially, the procedural  law of class action in Indonesian  legal  system was arranged consecutively under Law No. 23 of 1997  (Environmental Protection  Law), Law No.  8  of  1999  on Consumer Protection  and Law No. 41 of  1999  on Forestry.  The arrangement  of class action lawsuit  in the substantive  law was inspired by the recognition  of class action lawsuit  in the United  States through Article 23 of the US Federal  Rule of Civil Procedure  prescribing  that the requirements  for filing class action  lawsuit are as follows: numerosity,  commonality, typicality,  and adequacy of representation.  In Indonesia there is no procedural  law setting out the class action  lawsuit,  thus  Supreme  Court  Regulation   No.   1      of  2002  was  enacted.  The  replacement   of Law  No.  23  of  1997 (Environmental  Protection Law) by Law No. 32 of 2009 (Environmental  Protection and Management Law) allows the application of the class action with reference to this Supreme Court Regulation.  The arrangement of class action lawsuit in the Supreme Court Regulation No.  1    of 2002 still  encounters many challenges in its application.  The initial process i.e. certification  is very decisive whether the lawsuit  can be accepted  or is  qualified  as a class action lawsuit. In conjunction with this, the judges'  active role is very  important  whilst  waiting  for a specific  and adequate  legislation  to establish  the class action  procedure.  Meanwhilst,  the judges  are supposed to patch up the Supreme Court Regulation No. 1   of 2002.  Keywords:  Environmental Disputes, Procedural Law,  Class Action Lawsuit

Calling Power to Account: Law, Reparations, and the Chinese Head Tax Case

2006 ◽  
Vol 39 (4) ◽  
pp. 961-962
Author(s):  
Peter Li
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Class Action ◽  
University Of Toronto ◽  
Legal Case ◽  
The Supreme Court ◽  
Chinese Canadians ◽  
Tax Payers ◽  
Law Professors ◽  
Court Of Appeal

Calling Power to Account: Law, Reparations, and the Chinese Head Tax Case, David Dyzenhaus and May Moran, eds., Toronto: University of Toronto Press, 2005, pp. 471.This is a collection of fifteen essays that addresses different aspects of the Chinese head tax case. Edited by two law professors and written mostly by lawyers and law professors, the collection has a strong legal flavour. The book begins with the legal case of Mack vs. Attorney General of Canada. However, the book does not provide a succinct summary of the case. In brief, the case involves three Chinese Canadians, Shack Jang Mack, Quen Ying Lee and Yew Lee, filing a statement of claim through their attorney in December, 2000, in a class action on behalf of head tax payers in the Ontario Superior Court. In all, the case went through three courts, and the original ruling dismissing the claim of head tax payers was upheld by the Court of Appeal and the Supreme Court.

Isn't It Ironic? The “Particular Plaintiffs” Provision of the PLRA

2012 ◽  
Vol 24 (4) ◽  
pp. 229-235 ◽  
Author(s):  
Elizabeth Alexander
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Federal Courts ◽  
Class Action ◽  
Sequence Of Events ◽  
Judicial Efficiency ◽  
The Supreme Court ◽  
Procedural Decisions

The “particular plaintiffs” provision of PLRA, 18 U.S.C. § 3626(a)(1), has had little success in restricting prisoners' access to class certification. Nonetheless, prisoners may now be largely unable to pursue class action litigation. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court last year announced new restrictions on class certification that may make such litigation nearly unavailable in most civil rights cases, including those filed by prisoners. As a further irony, the Supreme Court's decision from the same term in Brown v. Plata demonstrates that the new standards announced in Dukes are unrelated to distinguishing cases in which class certification promotes judicial efficiency and fairness. This sequence of events underlines the importance of the federal courts' hostility to civil rights in exacerbating the effects of PLRA on prisoners' rights, and the Supreme Court's expression of that hostility through procedural decisions.

scholarly journals Materi dan Prosedur Penetapan Gugatan Perwakilan Kelompok, Studi Perbandingan: Indonesia dan Amerika Serikat

2018 ◽  
Vol 30 (2) ◽  
pp. 346
Author(s):  
Laras Susanti
Keyword(s):  
Supreme Court ◽  
Class Action ◽  
Law System ◽  
Legal Remedy ◽  
Opt Out ◽  
The Supreme Court ◽  
The Usa ◽  
Formal Requirements ◽  
Court Process

Abstract. Background of this article is, although it was first emerged in Common Law system countries, the practice of class action has been growing in Indonesia. This mechanism brings an opportunity to simplified the court’ process and to reduce the risk of disparity judgements. This article found similarities and differences scope and procedure of certification in Indonesia and the USA. Before examining the case, a presiding judges, accordingly to Supreme Court Regulation Number 1 Year 2002 concerning Procedure of Class Action, have to determine whether the case is eligible to be examine as class action case. This procedure is universally well-known as certification mainly focuses on the fulfilment of class action’s substantive requirements: numerosity, commonality, typicality and adequacy of representation and formal requirements. The similar requirements are also implemented in the USA accordingly to Federal Rule of Civil Procedure, Rule 23 Class Action. However, in those countries have different procedure when it comes to legal remedy to the certification order, mechanism to opt-out in case of settlement or withdrawal, the role of judge in assisting poor litigants and determining counsel’s fee. This article recommends Indonesia has to amend the Supreme Court regulation to add provisions on legal remedy, and mechanism to opt-out in case of settlement or withdrawal. 

scholarly journals Making Class Actions Work: The Untapped Potential of the Internet

2008 ◽  
Vol 69 (4) ◽  
Author(s):  
Robert H. Klonoff ◽  
Mark Herrmann ◽  
Bradley W. Harrison
Keyword(s):  
Supreme Court ◽  
Class Action ◽  
The Internet ◽  
Vital Importance ◽  
Class Actions ◽  
Opt Out ◽  
The Supreme Court ◽  
To Receive

Over twenty years ago, the Supreme Court recognized that in class action litigation, absent class members “must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel.” Although the absent class members’ rights to receive notice and an opportunity to opt out are of vital importance, the ability to be heard and participate in the litigation are also important.

scholarly journals ASPEK HUKUM CLASS ACTION DAN CITIZEN LAW SUIT SERTA PERKEMBANGANNYA DI INDONESIA

2012 ◽  
Vol 1 (1) ◽  
pp. 89
Author(s):  
Moch Iqbal
Keyword(s):  
Supreme Court ◽  
Legal Aspects ◽  
Class Action ◽  
Research Center ◽  
District Court ◽  
Shared Understanding ◽  
Research Results ◽  
The Supreme Court ◽  
Class Action Lawsuits ◽  
Law And Justice

The assertion aspects and Citizen Law Class Action Law Suit in fact has been recognized and accepted by the Judge and Judicial us, this condition affirmed the issuance of the Supreme Court of Indonesia Regulation Number I of 2002. Legal Breakthrough Central Jakarta District Court that receive and examine claims has increased the belief of justice seekers denganadanya decisions on a lawsuit aqua. However, it must be recognized that in the particular jurisdiction in Indonesia, based on research results Research Center of Law and Justice of the Supreme Court still found many judges who do not understand the legal aspects of handling and class action law suit and the citizen. Characteristics of the class action lawsuits and citizen law suit is necessary shared understanding of both the Judge and the community as a plaintiff; To understand the uniqueness of this lawsuit we all need to do a comparison on other countries that have implemented first lawsuit is like America, Canada etc. Keywords: Aspects of Law, Class Action, Citzen Law Suit

Giving Effect to Out-of-Province Judgments in Class Actions

2009 ◽  
Vol 46 ◽  
pp. 397-414
Author(s):  
Jean-Gabriel Castel
Keyword(s):  
Supreme Court ◽  
Procedural Fairness ◽  
Civil Code ◽  
Class Action ◽  
Supreme Court Of Canada ◽  
Literal Interpretation ◽  
Class Actions ◽  
The Supreme Court ◽  
Forum Non Conveniens ◽  
Liberal Approach

SummaryIn Canada Post Corp. v. Lépine, the Supreme Court of Canada upheld the lower Québec courts’ refusal to recognize an Ontario judgment approving an out-of-court settlement of a class action that included Québec residents. In reaching its decision, the Supreme Court of Canada did not extend to the non-resident plaintiff members of the class the jurisdictional test applicable to defendants. The decision was based on the lack of procedural fairness accorded to the non-residents. The Court also rejected a literal interpretation of Article 3164 of the Québec Civil Code, which requires that the foreign court must have had jurisdiction in accordance with Québec rules, including the doctrine of forum non-conveniens. To apply this doctrine is not compatible with inter-provincial and international comity as it defeats the liberal approach taken by the Civil Code with respect to the recognition of foreign judgments. This settles a long-lasting controversy. As a result of this decision, enhanced procedural fairness has become the best defence available to non-resident, non-attorning plaintiffs in inter-provincial and international class actions. Finally, the Court hoped that, in the spirit of mutual comity, the provincial legislatures would develop more effective methods for managing jurisdictional disputes involving national class actions.

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