Sammelklagen und ihre Finanzierung

2021 ◽  
Author(s):  
Moritz Voit
Keyword(s):  
Class Action ◽  
Class Actions ◽  
Opt Out ◽  
Legitimate Interests ◽  
Subjective Rights

After the reform is before the reform: the search is on for a successor to the model declaratory action, which was only introduced in 2018 and is neither suitable for dealing with mass cases nor for implementing the Representative Actions Directive. The author proposes the introduction of an opt-out class action, which allows associations and individuals to collectively pursue subjective rights. A major challenge is to ensure that the rules on the funding of class actions provide sufficient incentives to bring legitimate actions without infringing on the legitimate interests of the defendant or class members. Australian class actions, which are regularly enabled by litigation funders, are being examined as a possible model.

scholarly journals INTERNATIONAL EXPERIENCE OF THEORETICAL AND PRACTICAL ASPECTS OF GROUP LAWSUITS

2020 ◽  
Vol 6 (42) ◽  
pp. 85
Author(s):  
T. Oldak
Keyword(s):  
International Experience ◽  
Class Action ◽  
Procedural Law ◽  
Class Actions ◽  
Opt Out ◽  
Civil Proceedings ◽  
Legitimate Interests ◽  
Scope Of Application ◽  
General Scientific ◽  
Large Groups

The article is devoted to the study of international experience of theoretical and practical aspects of proceedings in class actions. This study will present various models of regulation in this area of the Anglo-Saxon and mixed legal families. By analyzing this legal basis, the practice of application will be possible to establish the essence of the class action in civil proceedings by disclosing the main features that are inherent in it and are such that distinguish it from other procedural structures aimed at protecting violated rights and legitimate interests as effective judicial mechanism.The subject of the study is issues related to one of the jurisdictional ways to protect the rights and legitimate interests of large groups of people. The purpose of this work is to publish the results of the study, which was conducted as part of a dissertation study on "Group lawsuit in civil proceedings in Ukraine." During the study, a general scientific dialectical method of use was used, which allowed to comprehensively study the main provisions of class action in foreign procedural law and the possibility of its development in the legislation of Ukraine, and provided an opportunity to reveal the nature of class actions in civil proceedings. stages. The scope of application of the results of the development of the theoretical basis in the field of mechanisms for the protection of the rights and legitimate interests of large groups of persons in order to introduce the appropriate procedure in the civil procedure legislation of Ukraine.Key words: civil proceedings, group lawsuit, initiating plaintiff, numerous groups, litigation proceedings, model "opt-in", "opt-out".

Competition Litigation

2019 ◽  
Keyword(s):  
Class Action ◽  
Criminal Proceedings ◽  
Applicable Law ◽  
Class Actions ◽  
Joint And Several Liability ◽  
Litigation Process ◽  
Opt Out ◽  
Full Analysis ◽  
Deutsche Bahn ◽  
The Uk

This book provides a comprehensive guide to all aspects of competition litigation in the UK. It covers both practice and procedure in the UK courts as well as in the Competition Appeal Tribunal. All aspects of case work are covered, from commencement of proceedings, group litigation, jurisdiction, applicable law, evidence, remedies, costs, and arbitration to criminal proceedings, giving competition lawyers a full analysis of the litigation process. There are also new chapters dedicated to the practice and procedure in Scotland and Northern Ireland.Fully updated in its second edition, coverage reflects important amendments to the Competition Act 1998; for example, the introduction of rules for class actions in the Competition Appeal Tribunal. As a result of the implementation of the Damages Directive, Directive 2014/204, new rules have been introduced for disclosure and joint and several liability. The book also covers the new cartel offence, which no longer has the mens rea of dishonesty.The new edition covers a range of important new cases: to name but a few, Sainsbury’s v MasterCard on the pass-on defence; Dorothy Gibson and Walter Merricks on opt-out class action; Cooper Tire and Toshiba Carrier on anchor defendants; and Deutsche Bahn on applicable law.

Lord Woolf, Multi-Party Situations, and Limitation Periods

2020 ◽  
pp. 133-152
Author(s):  
Rachael Mulheron
Keyword(s):  
Competition Law ◽  
Class Action ◽  
Class Actions ◽  
Opt Out ◽  
The Subject ◽  
Limitation Periods ◽  
Proper Subject

More than twenty years ago, Lord Woolf MR recommended the implementation of a regime which could cater for opt-in or opt-out class actions. It was not until 1 October 2015 that such a regime was enacted—and solely for competition law grievances of either a follow-on or a stand-alone nature. A key aspect of any class action design is how to handle limitation periods for the representative claimant and for class members. In his seminal report, Lord Woolf flagged up that appropriate provisions for limitation periods would be a proper subject for primary, rather than secondary, legislation. Accordingly, limitation periods duly became the subject of careful drafting in the 2015 regime, courtesy of section 47E of the Competition Act 1998. This chapter reflects upon some of the key comparative drafting lessons of class action regimes elsewhere which were helpful and instructive for that drafting exercise.

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>

scholarly journals Protection of collective rights and interests in arbitration

2021 ◽  
Vol 118 ◽  
pp. 04011
Author(s):  
Vladimir Veniaminovich Dolganichev ◽  
Svetlana Pavlovna Grubtsova
Keyword(s):  
Class Action ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Collective Rights ◽  
Procedural Law ◽  
Class Actions ◽  
Legal Method ◽  
Legitimate Interests ◽  
General Scientific ◽  
Rights And Interests

Objective of the research: to identify the means of protection of collective interests, suitable for international commercial arbitration, based on models used in Russian procedural law and abroad. The research used both general scientific (analysis, synthesis, comparison, descriptive, formal-logical) and special legal (formal-legal, comparative-legal, historical-legal, method of legal modeling) methods. The work has resulted in a conclusion about the expansion of the use of collective rights and interests’ remedies in international commercial arbitration. In addition, conclusions are formulated on the admissibility in arbitration of such means of protection of collective rights and interests of procedural law as complicity, class actions, bankruptcy, protection of an indefinite range of persons and indirect claims. In particular, such a classic remedy of multiple persons as procedural complicity is often used in arbitration; on the other hand, rules are emerging on the possibility of using a class action to protect multiple persons in arbitration; the use of an indirect claim is also not restricted to arbitration, and it can be used subject to national law. The novelty of the research lies in the postulate of the impossibility in the modern legal process of using the institute of protection of an indefinite range of persons in arbitration due to the special nature of arbitration as a voluntary form of protection of rights and legitimate interests.

scholarly journals An empirical analysis of class actions in South Africa

2020 ◽  
Vol 24 ◽  
Author(s):  
Theo Broodryk
Keyword(s):  
South Africa ◽  
South African ◽  
Empirical Analysis ◽  
Data Access ◽  
Class Action ◽  
Access To Justice ◽  
Class Actions ◽  
Comprehensive Data ◽  
Opt Out ◽  
Available Information

ABSTRACT As far as the author is aware, there has not been an empirical analysis of class actions in South Africa since the introduction of the mechanism by the interim Constitution of 1993 more than 25 years ago. There is no publicly available data which provides meaningful empirical insight into the operation of the South African class action. There is consequently much that we do not know about it. This article attempts to examine class actions over a period spanning more than 19 years. The purpose of the article will be to provide, through an analysis of case law, an empirical exposition of class actions instituted in South Africa using the criteria and methodology mentioned below. The study demonstrates that, although there have been only a limited number of certification judgments delivered to date, there has been rapid growth in the number of certification judgments delivered in the past five years. Most of these judgments are aimed at providing access to justice for poor and marginalised individuals. The data presented herein could place South Africa in the fortuitous position of being able to build a comprehensive data archive in which the class action is statistically dissected. Without comprehensive data concerning the operation of the class action, the available information will be insufficient from the perspective of providing adequate insight to enable its optimal development going forward. Keywords: Class action; empirical data; access to justice; certification; opt-in; opt-out; bifurcation; settlement

Necessity is the Mother of Invention: The Adoption of Third-Party Litigation Funding and the Closed Class in Australian Class Actions

2009 ◽  
Vol 38 (3) ◽  
pp. 245-267 ◽  
Author(s):  
Michael Legg ◽  
Louisa Travers
Keyword(s):  
Class Action ◽  
Third Party ◽  
Access To Justice ◽  
Contractual Relationship ◽  
Class Actions ◽  
Closed Class ◽  
Opt Out ◽  
Group Members ◽  
Contingency Fees ◽  
Financing Gap

Australian class actions have recently undergone a revolution in relation to the financing of litigation and group definition. Australia has historically banned contingency fees and adopted an opt-out class action. However, the law now allows for third-party litigation funding where non-lawyers may finance class actions in return for a share of the recovery and for the class action to be defined as a closed class that only includes those group members who have entered into a litigation funding agreement. These developments have important ramifications for class action practice. Litigation funding filled the financing gap in Australian class actions and consequently facilitated access to justice. However, the need for a contractual relationship to allow for the quasi-contingency fee to be recovered led to the employment of a closed class. The closed class dissuaded ‘free-riding’ but also undermined the Australian class action objectives of access to justice and efficient resolution of disputes.

A Channel Apart: Why the United Kingdom has Departed from the European Commission’s Recommendation on Class Actions

2015 ◽  
Vol 17 ◽  
pp. 36-65 ◽  
Author(s):  
Rachael MULHERON
Keyword(s):  
United Kingdom ◽  
European Commission ◽  
Common Ground ◽  
Class Action ◽  
Reform Agenda ◽  
Class Actions ◽  
The United Kingdom ◽  
Collective Redress ◽  
Opt Out ◽  
The Uk

AbstractOver the course of 2013–15, there have been significant developments in the reform of class actions in Europe. The European Commission published its Recommendation of common principles concerning collective redress in June 2013, whilst the Consumer Rights Act 2015 – which was introduced into the United Kingdom Parliament in January 2014 and obtained Royal Assent on 26 March 2015 – contains a class action for competition law infringements. Although there is some ‘common ground’ between these legislative instruments, their divergences are far more legally significant, and comprise the focus of analysis in this article. Regarding the two topics of standing to sue, and the opt-in versus opt-out approach to forming the class, the approaches of the European Commission and the UK Parliament differ markedly, reflecting the deep policy, political and judicial divisions which have manifested in this area of reform for over a decade. The legislators have also ultimately chosen different scopes of application, with the European Commission preferring a ‘horizontal’ approach to reform, whilst the UK Parliament has pursued a sector-specific reform agenda. In respect of standing to sue and the opt-in versus opt-out debate, there are numerous sound legal and political reasons that manifestly support the UK law-makers’ decision to depart from the 2013 Recommendation. However, in respect of the horizontal-versus-sectoral debate, the topsy-turvy history of reform at both European and domestic levels has resulted, ironically, in both the Commission and UK policy-makers reversing the views which each had initially adopted within the past decade. Undoubtedly, as these reform measures demonstrate, the collective redress landscape is both evolving and controversial.

scholarly journals The South African Class Action Mechanism: Comparing the Opt-In Regime to the Opt-Out Regime

2019 ◽  
Vol 22 ◽  
pp. 1-17
Author(s):  
Theo Broodryk
Keyword(s):  
South African ◽  
Class Action ◽  
Access To Justice ◽  
Constitutional Court ◽  
Preferential Treatment ◽  
Class Actions ◽  
Opt Out ◽  
To Come ◽  
The Individual ◽  
Do So

In Mukaddam v Pioneer Food (Pty) Ltd 2013 2 SA 254 (SCA), Nugent JA stated that, once the class is confined to claimants who choose positively to advance their claims and are required to come forward for that purpose, he can see no reason why they are not capable of doing so in their own names through joinder – they do not need a representative to do so on their behalf. The members who choose to opt in to the class action will thus be identifiable. If that is the case then, according Nugent JA, joinder may be the appropriate procedural device. A problem evidenced by this approach is accordingly that, by suggesting that joinder is the appropriate procedural device where all the claimants are identifiable, rather than a class action, the court essentially attacked the viability of the opt-in regime of class action litigation. The preferential treatment afforded by our courts to the opt-out class action regime is further reinforced by the finding of Nugent JA that the opt-in class action regime can be utilised only in exceptional circumstances. As exceptional circumstances had not been proved, he found that a class action was not the most appropriate way to pursue the claims. He accordingly suggested that joinder was a viable option to pursue the claims. The opt-in class action regime requires individual class members to take positive steps to participate in the class action. In other words, class members are required to come forward and opt into the class action, failing which they will not be bound by or benefit from the outcome of the litigation. Support for the opt-in regime is essentially premised on the belief that individuals who are unaware of the litigation should not be bound by its outcome. The opt-out class action regime, on the other hand, automatically binds members of the class to the class action and the outcome of the litigation unless the individual class members take steps to opt out of the class action. Support for the opt-out regime is essentially based on the view that the opting-in requirement could undermine one of the primary purposes of class action litigation, which is to facilitate access to justice. The Constitutional Court in Mukaddam v Pioneer Foods (Pty) Ltd 2013 5 SA 89 (CC) held that Nugent JA was wrong to find that an applicant in an opt-in class action is required to show exceptional circumstances. However, the court did not provide reasons for its disagreement. The issue relating to exceptional circumstances in opt-in class actions was dealt with in two sentences. The Constitutional Court also failed to deal with the nature and status of the opt-in class action compared with opt-out class actions in South African law. The note will accordingly consider when, if at all, it is appropriate to use the opt-in class action regime compared to the opt-out class action regime.  

scholarly journals THE COURT REFUSES TO GRANT A CERTIFICATION ORDER IN THE BREADCARTEL CLASS ACTION CASES: A CLOSER EXAMINATION OF THE WESTERN CAPE JUDGMENT The Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Foods (Pty) and Imraahn Ismail Muka

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Tshepo Herbert Mongalo ◽  
Nkosikhulule Nyembezi
Keyword(s):  
Preliminary Investigation ◽  
Final Analysis ◽  
Class Action ◽  
Selling Price ◽  
Western Cape ◽  
Manufacturing Companies ◽  
High Court ◽  
Class Actions ◽  
Opt Out ◽  
Administrative Penalty

In the above cases, which came before the Western Cape High Court for hearing on both 23 and 25 November 2010, the judge, Francois Van Zyl, AJ dismissed the two applications for leave to institute the class actions on behalf of the applicants against the respondent bread-manufacturing companies (ie, Pioneer Foods (Pty) Ltd, Tiger Consumer Brands Limited and Premier Foods Limited)who, together with Foodcorp (Pty) Ltd, enjoy between 50% and 60% of the domestic bread market in South Africa. The judge promised to give reasons for his decision subsequent to his ruling on 26 November 2010 and, indeed, on 07 April 2011, he provided detailed reasons for his decision in terms of Rule 49(1)(c) of the Rules of the High Court. Material facts as accepted by the Court and which are relevant for the purposes of this case note are as follows: Both cases emanated from a complaint raised with the Competition Commission following an allegation of a bread cartel operated by the Respondent companies in the Western Cape in December 2006. After a preliminary investigation, the Commission initiated a complaint against the three respondents in the above applications. One of the respondent companies, Premier, applied for leniency and disclosed to the Commission that, together with Pioneer and Tiger, it was part of a bread cartel in the Western Cape which fixed the selling price of bread and other trading conditions. Following this disclosure, Premier was granted corporate leniency by the Commission and, on 14 February 2007, an agreement was concluded between Premier and the Commission in terms of which Premier agreed to assist the Commission in its investigations and subsequent prosecution of the other respondents before the competition Tribunal. On the same day that the corporate-leniency agreement was concluded with Premier, the Commission referred the complaint made against Tiger and Pioneer in the Western Cape to the Competition Tribunal. Following the referral, Tiger negotiated a consent agreement with the Commission, in terms of which it admitted that it enteredinto an agreement with Premier and Pioneer during December 2006 regarding bread prices and discounts to independent distributors in the Western Cape which amounted to a contravention of the provisions of the Competition Act (89 of 1998). On 27 November 2007, the Competition Tribunal made a consent order against Tiger in terms of section 49D of the Competition Act and levied against it an agreed administrative penalty of approximately R98 million. With regard to the third respondent company, Pioneer, complaints against it were subsequently heard by the Competition Tribunal and, on 03 February 2010, it was found that, together with Premier and Tiger, it was part of a bread cartel in December 2006 in the Western Cape in contravention of the provisions of the Competition Act. Taking into account other contraventions of the Competition Act committed by the company in other parts of the country, Pioneer wassubsequently ordered to pay an administrative penalty of approximately R195 million.  In the final analysis, the facts established that bread-cartel operations took place during December 2006 in the Western Cape. It was further established that the three respondent companies were part of that bread cartel in contravention of the provisions of the Competition Act (ie, Premier applied forand was granted corporate leniency, Tiger negotiated a consent agreement which was made a consent order by the Competition Tribunal in terms of the Competition Act and Pioneer was found by the Tribunal to have been in contravention of the Competition Act and an administrative penalty was imposed upon it). It was in the context of the above circumstances that the applicants brought applications for class-action certification against the three respondents in the Western Cape High Court for the compensation of theconsumers and distributors who were detrimentally affected by the conduct of the respondent companies in contravention of the Competition Act. The AJ’s primary reasons for dismissing the applications included, firstly, the fact that while it is important in cases such as this to clearly identify a class for the purposes of the “class action” on the “opt-out” basis, the applicants failed to identify the “class” for the purposes of the application. 

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