scholarly journals The role and impact of environmental class actions in Australia

2021 ◽  
Vol 24 (1) ◽  
pp. 6-40
Author(s):  
Brooke Dellavedova
Keyword(s):  
Environmental Governance ◽  
Environmental Harm ◽  
Access To Justice ◽  
Class Actions ◽  
Environmental Objectives

Class actions provide a mechanism for grouping together like claims; and, in doing so, can enhance access to justice and the integrity of our democratic processes. Environmental class actions have an important role to play in environmental governance including by providing compensation and remediation, shaping norms of conduct and promoting accountability. There are, however, various limitations on the usefulness of class actions in achieving environmental objectives. In particular, the class actions regime is procedural rather than substantive (it does not overcome limitations on the availability or utility of causes of action for addressing environmental harm); it attracts the operation of additional rules and jurisprudence which may make some actions more difficult or not well suited to being brought as class actions; and class actions tend to be expensive and risky. Accordingly (and notwithstanding a recent flurry) we are unlikely to see the opening of the dreaded floodgates. Rather, environmental governance will most likely continue to be supported by the appropriate and considered commencement and conduct of meritorious actions.

scholarly journals The Governance of Transnational Environmental Harm: Addressing New Modes of Accountability/Responsibility

2008 ◽  
Vol 8 (3) ◽  
pp. 8-24 ◽  
Author(s):  
Michael Mason
Keyword(s):  
Environmental Degradation ◽  
Environmental Governance ◽  
Environmental Politics ◽  
Environmental Harm ◽  
Special Issue ◽  
Global Environmental Politics ◽  
Private Authority ◽  
Global Environmental ◽  
Introductory Paper

Transboundary and global environmental harm present substantial challenges to state-centered (territorial) modalities of accountability and responsibility. The globalization of environmental degradation has triggered regulatory responses at various jurisdictional scales. These governance efforts, featuring various articulations of state and/or private authority, have struggled to address so-called “accountability deficits” in global environmental politics. Yet, it has also become clear that accountability and responsibility norms forged in domestic regulatory contexts cannot simply be transposed across borders. This special issue explores various conceptual perspectives on accountability and responsibility for transnational harm, and examines their application to different actor groups and environmental governance regimes. This introductory paper provides an overview of the major theoretical positions and examines some of the analytical challenges raised by the transnational (re)scaling of accountability and responsibility norms.

Collective Access to Justice

2021 ◽  
Author(s):  
Michael Molavi
Keyword(s):  
Access To Justice ◽  
Transformative Change ◽  
England And Wales ◽  
Class Actions ◽  
Collective Redress

At a time when the collective redress landscape is undergoing a period of transformative change, this important and timely research focuses on class actions in England and Wales. Aiming to promote access to justice, this pioneering work separates fact from fiction in an easily digestible way, offering progressive solutions for reform.

Understanding the Economics of Class Actions

2021 ◽  
pp. 87-120
Author(s):  
Michael Molavi
Keyword(s):  
Rational Choice ◽  
Rational Choice Theory ◽  
Choice Theory ◽  
Class Action ◽  
Access To Justice ◽  
Class Actions

This chapter delves into one of the strongest arguments in favour of the access to justice potential of class actions, which can be found in the rational choice theory of orthodox economics. It explains the economic access to justice framework that is based on the recognition that the class action allows the pursuit of claims that would not be pursued by rational actors. It also talks about how class actions allow the pursuit of negative value claims or claims in which the value of the claim is outweighed by the costs of its pursuit. The chapter elaborates how allowing for ideological representatives to advance claims on behalf of harmed groups can contribute towards preventing injustices by deterring misconduct by potential wrongdoers. It explores important issues pertaining to the economics of class actions that impact the access to justice and are achieved through mass litigation.

Liability of Multinational Corporations in Canada for International Human Rights Violations

2021 ◽  
pp. 113-139
Author(s):  
Bruce W. Johnston
Keyword(s):  
Human Rights ◽  
Multinational Corporations ◽  
Civil Law ◽  
Access To Justice ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Human Rights Abuses ◽  
Class Actions ◽  
Forum Non Conveniens ◽  
International Human

Bruce W. Johnston reviews the current state of play in Canada regarding the imposition of civil liability on multinationals for human rights abuses occurring overseas. He explains the bijural nature of the legal system and the consequential developments of civil law in Quebec and common law elsewhere. He outlines, by reference to case law, the relevant law on jurisdiction, including in class actions, and application of forum non conveniens, forum necessitatis, and choice of law, under common and civil law. Regarding causes of action, he considers the corporate veil hurdle and important judgments on direct liability of the parent company, in Choc v. Hudbay Minerals and most strikingly, the direct application of customary international human rights law by the Supreme Court in Nevsun. Equally important in terms of practical access to justice, the chapter outlines the rules on procedures relating to opt-out class actions, legal costs, including litigation funding.

Class actions: The flood that never came

2018 ◽  
Vol 43 (3) ◽  
pp. 171-176
Author(s):  
David Barda
Keyword(s):  
Federal Court ◽  
Access To Justice ◽  
Unique Combination ◽  
Cost Shifting ◽  
Class Actions ◽  
Contingency Fees ◽  
The Right

After 25 years of class actions in Australia, it is worth reviewing whether the predictions made – that part IVA of the Federal Court of Australia Act 1976 would result in an Americanised litigious culture and a flood of spurious claims – came to pass. This article argues that the flood was more of a trickle and that Australia's unique combination of cost shifting rules, contingency fees and judicial supervision have mitigated against the deluge. It takes the position that Australia has struck the right balance between access to justice and protection against vexatious or unmeritorious claims.

scholarly journals Are Class Actions Finally (Re)conquering Europe? Some Remarks on Directive 2020/1828

2021 ◽  
Vol 30 ◽  
pp. 14-22
Author(s):  
Astrid Stadler
Keyword(s):  
Public Access ◽  
Access To Justice ◽  
Collective Actions ◽  
Collective Interest ◽  
Class Actions ◽  
Legal Standing ◽  
Collective Redress ◽  
Scope Of Application ◽  
National Legislatures ◽  
Union Directive

The article provides a brief overview of the background of the new European Union directive on representative actions for protection of the collective interest of consumers (Directive 2020/1828). It describes the basic elements of the directive and explains the major changes that have occurred since the European Commission issued its Recommendation document on collective redress in 2013. The author highlights the issues of the scope of application of the directive, of legal standing to bring a representative action, of collective settlements, and of the problem of funding for collective actions. This discussion puts emphasis on the need to extend legal standing to individual members of the group and articulates an appeal to national legislatures, particularly in Germany, to be more open-minded towards commercial litigation funding and the establishment of a public access-to-justice fund designed to guarantee the effectiveness of Directive 2020/1828 and its implementation.

scholarly journals Reforming New Zealand's Class Action Procedures to Enhance Efficiency and Improve Access to Justice

2021 ◽  
Author(s):  
Danielle Thorne
Keyword(s):  
New Zealand ◽  
Class Action ◽  
Access To Justice ◽  
Efficient Procedure ◽  
Legislative Reform ◽  
Class Actions ◽  
Opt Out ◽  
Action Type ◽  
Enhance Efficiency ◽  
Action Procedure

<b>Abstract </b><p>This thesis addresses the question of whether New Zealand should reform its class action procedures in order to better meet the class action objectives of efficiency and access to justice. Class actions are a mechanism whereby groups of claimants with the same or similar claims can band together and bring proceedings. The ability for groups of similarly affected claimants to bring proceedings together provides certain advantages, including efficiency (both judicial efficiency and cost efficiency) and access to justice (where there may otherwise be none). The existence of a class action mechanism can also have a regulatory effect and serve to discourage illegal or inappropriate conduct. </p> <b>Currently, New Zealand does not have a dedicated class actions regime, and instead operates a class action type procedure under r 4.24 of the High Court Rules (known as a representative action). A review of the New Zealand position in relation to r 4.24 indicates that while there is a substantial body of law relating to the use of the representative action procedure, the objectives of the representative action procedure are not being met. The lack of legislative guidance in relation to the representative action has created significant difficulties for claimants in New Zealand. </b><p>Reforming the New Zealand class action procedure through legislative reform would provide a more efficient procedure and enhance access to justice. Wholesale legislative reform in the form of a dedicated class actions statute would be the best way forward for New Zealand. Legislative reform would need to address particular issues that have arisen in Australia and Ontario, including issues associated with the same interest requirement, opt-in and opt-out mechanisms, settlement requirements and limitation periods. The experience in Ontario and Australia illustrates the importance of ensuring the legislation is as clear as possible, and learning from the experience in those jurisdictions is vital if the objectives of the class action procedure are to be met. </p>

Collective Access to Justice

2021 ◽  
pp. 1-16
Author(s):  
Michael Molavi
Keyword(s):  
Rule Of Law ◽  
Civil Procedure ◽  
Access To Justice ◽  
England And Wales ◽  
The Rule Of Law ◽  
Class Actions

This chapter begins by elaborating England and Wales's need for increasing access to justice. It notes the observance of justice stakeholders that the capacity of people to access justice is paramount in a democracy governed by the rule of law. It also discusses the Competition Appeal Tribunal, which was a legislation introduced in Parliament on 23 January 2014 and is considered the only area where class actions are available. The chapter explains the decision of England and Wales to introduce class actions on a sectoral basis, rather than using a generic or trans-substantive approach, which is in contrast to other regimes and well-established principles of civil procedure since the 1870s. It discusses claims that are covered in the Competition Appeal Tribunal which remain unfulfilled in every other area of law.

Class Actions in Historical and Comparative Perspective

2021 ◽  
pp. 17-48
Author(s):  
Michael Molavi
Keyword(s):  
United States ◽  
First Generation ◽  
Second Generation ◽  
The United States ◽  
Comparative Perspective ◽  
Access To Justice ◽  
England And Wales ◽  
Class Actions ◽  
Generation Regime ◽  
First And Second Generation

This chapter outlines the historical and comparative context of class actions that have developed since their modern origins in the United States. It traces the development of the United States as a first generation regime, followed by Canada and Australia as second generation regimes. It also examines the recent efforts to institute collective mechanisms and the ways in which these developments have progressed. The chapter focuses on first and second generation regimes for comparative insights in order to understand their influencing developments in England and Wales as a third generation regime. It illuminates and situates developments in a broader historical and comparative perspective to provide a better sense of the lineage of the vehicle and the extent to which extant developments in England and Wales are falling short of their access to justice potential.

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