scholarly journals The new directive on an EU-wide representative action and third-party litigation funding: An opportunity for European consumers?

2021 ◽  
Vol 3 (1) ◽  
pp. 95-117
Author(s):  
Massaro Piletta
Keyword(s):  
Comparative Method ◽  
The United States ◽  
Regulatory Competition ◽  
Third Party ◽  
Access To Justice ◽  
Cross Border ◽  
Collective Redress ◽  
Opt Out ◽  
Specific Regulation ◽  
Party Funding

After years of compensatory collective redress being left to a sort of regulatory competition among Member States, Directive 1828/2020 finally introduced an EU wide representative action scheme, aimed at strengthening the position of European consumers vis-à-vis new market dynamics such as globalisation and digitalisation. The new system, which shall run in parallel with national tools, introduces some innovations such as a cross-border action mechanism, the possibility of adopting an opt-out model and a specific regulation of third-party litigation funding in the context of collective redress. This aspect, addressed already in the 2013 Recommendation, is of particular interest, because third party funding represents a particularly powerful complement to collective redress in easing citizens' access to justice. However, the provisions introduced with Directive 1828/2020 leave some issues open. In particular, the Court's role in managing the funding agreement, with special reference to the funder's fee, and the effect of the funding agreement in case an opt-out adhesion mechanism is adopted are of paramount importance and still need to be addressed interpretatively. In this task, the comparative method will be particularly helpful in analysing the solution which Countries more familiar with third party funding, like Australia, Canada or the United States have introduced or discussed.

scholarly journals A Law and Economics Perspective on the EU Directive on Representative Actions

2021 ◽  
Author(s):  
L. Visscher ◽  
M. Faure
Keyword(s):  
Law And Economics ◽  
Class Action ◽  
Third Party ◽  
Collective Actions ◽  
Member States ◽  
Eu Directive ◽  
Opt Out ◽  
Contingency Fees ◽  
Party Funding ◽  
The Eu

AbstractThis article provides an analysis of the Directive on representative actions for the protection of the collective interests of consumers of 25 November 2020. The Directive enables qualified entities to bring representative actions on behalf of the consumer. The article uses a Law and Economics approach to stress the advantages of collective actions as a tool to remedy rational apathy and free-rider behaviour. The article therefore in principle welcomes the fact that this Directive will lead to all Member States having some form of collective redress. However, it is rather difficult to fit this Directive into the economic criteria for centralization as there is no obvious danger of cross-border externalities or a race-to-the-bottom. The article is critical of the fact that the Directive only provides for a representative action and does not mention the alternative of a group action (sometimes referred to as a class action). This is especially problematic if there are very few qualified entities that could bring the representative action. Furthermore, the fact that Member States may choose an opt-in procedure instead of an opt-out procedure is critically evaluated. The most problematic aspect of the Directive is the funding of the representative action. Punitive damages and contingency fees are rejected, and the possibility of third-party funding is restricted. It is therefore to be feared that this Directive, notwithstanding the good intentions, may not lead to much application in practice, since the question of how the representative action is to be financed is not resolved in any satisfactory manner.

Third-party funding na arbitragem contra Estados: a relativização da imunidade executória na execução da sentença arbitral contra Estados

2019 ◽  
Vol 1 (1) ◽  
pp. 203-234
Author(s):  
Ana Monteiro ◽  
Daniel Ferreira
Keyword(s):  
United States ◽  
Risk Assessment ◽  
Asset Pricing ◽  
The United States ◽  
Third Party ◽  
State Immunity ◽  
The United Kingdom ◽  
Domestic Legislation ◽  
Current Context ◽  
Party Funding

The purpose of this article is to assess the risk for preventing the execution of arbitral awards made against Sovereign States due to the State’s immunity shield. Given the importance of an accurate asset pricing in the business of third-party funding (TPF), the topic entails a particular relevance to the current context of globalized litigation in light of its contribution to the promotion of TPF at the international arbitration community. After reviewing the literature on TPF, on the peculiarities of investment and commercial arbitrations against States and on the evolution of State immunity (also in terms of domestic legislation, considering the local laws passed by the United States, the United Kingdom and Australia), the article aims explore how the funder should incorporate into its risk assessment the risk of not executing awards rendered against Sovereign States.

scholarly journals Third party funding and access to justice

2021 ◽  
Vol 3 (2) ◽  
pp. 135-148
Author(s):  
Milan Lazić ◽  
Milica Savić
Keyword(s):  
Third Party ◽  
Access To Justice ◽  
Conflict Of Interests ◽  
Party Funding

The purpose of this paper to analyze whether and to what extent are third-party funding and access to justice intertwined and compatible. The analysis started from recognizing most common challenges with third-party funding and whether these challenges may be overcome with existing regulation and guidelines. Global lack of regulation of this subject is noticeable. This increases the risks of having undisclosed conflict of interests between various participants and affects the confidentiality, efficiency and fairness of the proceedings and ultimately the access to justice considerations. Although third party funding undoubtedly contributes to larger access to justice, an unregulated market of this kind may also draw adverse inference to the access to justice. In conclusion, authors of this paper call for wider regulation of this matter, including both through local legislation and arbitration rules.

scholarly journals Algorithm Transparency through the Fair Credit Reporting Act (FCRA)

2021 ◽  
Vol 18 (04) ◽  
Author(s):  
Karl Schmeckpeper ◽  
Sonia Roberts ◽  
Mathieu Ouellet ◽  
Matthew Malencia ◽  
Divya Jain ◽  
...  
Keyword(s):  
Dominant Role ◽  
State Level ◽  
The United States ◽  
Mortgage Lending ◽  
Third Party ◽  
Access To Justice ◽  
Credit Reporting ◽  
Individual Level ◽  
Background Check ◽  
Lending Decisions

Racial discrimination in housing has long fueled disparities in homeownership and wealth in the United States. Now, automated algorithms play a dominant role in rental and lending decisions. Advocates of these technologies argue that mortgage lending algorithms reduce discrimination. However, “errors in background check reports persist and remain pervasive,” and algorithms are at risk for inheriting prejudices from society and reflect pre-existing patterns of inequality. Additionally, algorithmic discrimination is often challenging to identify and difficult to explain or prosecute in court. While the Federal Trade Commission (FTC) is responsible for prosecuting this type of discrimination under the Fair Credit Reporting Act (FCRA), their enforcement regime “has inadequately regulated industry at the federal and state level and failed to provide consumers access to justice at an individual level,” as evidenced by its mere eighty-seven enforcement actions in the past forty years. In comparison, 4,531 lawsuits have been brought under the FCRA by other groups in 2018 alone. Therefore, the FTC must update its policies to ensure it can identify, prosecute, and facilitate third-party lawsuits against a primary driver of housing discrimination in the 21st century: discrimination within algorithmic decision making. We recommend that the FTC issue a rule requiring companies to publish a data plan with all consumer reporting products. Currently, the FTC recommends that companies make an internal assessment of the components of the proposed data plan to ensure that they are not in violation of the FCRA. Therefore, requiring that these plans be published publicly does not place undue burden on companies and empowers consumers to advocate for themselves and report unfair practices to the FTC. Coupled together, these will reduce the costs of investigation and enforcement by the FTC and decrease the discriminatory impact of automated decision systems on marginalized communities.

scholarly journals Political Interference in Clinical Programs: Lessons From The U.S. Experience

2014 ◽  
Vol 8 ◽  
pp. 83 ◽  
Author(s):  
Peter Joy
Keyword(s):  
United States ◽  
Public Interest ◽  
Clinical Teaching ◽  
The United States ◽  
Law School ◽  
Third Party ◽  
Access To Justice ◽  
Political Interference ◽  
Clinical Program ◽  
History Of

<p>This article reviews the history of political interference in clinical programs in the United States, considers the attacks on clinical programs in the context of attacks on other lawyers representing the poor or other marginalized clients, and draws lessons from the experience in the United States that may be helpful to clinical programs in other countries. With the spread of clinical teaching throughout the world, it is likely that law faculty teaching clinical courses in other countries may encounter the types of political interference with client and case selection experienced by their colleagues in the United States. </p><p>Part I of this article examines the access to justice mission of clinical legal education in the United States and briefly traces the history and types of political interference in law school clinical programs. It also discusses the ethical obligations of lawyers to represent unpopular or controversial clients or causes, and considers how the attacks on clinical programs interfere with a lawyer’s ethical obligation to act independently of third-party interests. </p><p>Part II examines the relationship between access to justice and the attacks on the major sources of public interest lawyers in the United States. Part II contends that access to the courts is a cornerstone principle for the rule of law, and access to the courts depends on having the assistance of a lawyer. Part II draws a connection between the political interference in clinical programs and other attacks on public interest lawyers.</p><p>Part III analyzes the legacy of political interference on clinical programs. It discusses the effects of both the highly publicized attacks on clinical programs and the more frequent questions concerning clinical programs’ choices of clients and cases. It argues that the breadth of political interference in clinical programs in the United States indicates that any clinical program may be targeted even if the clinical faculty believe that they are taking non-controversial cases. Part III also questions whether political interference in clinical programs will be as great an issue in those countries that make legal assistance in civil cases more available to persons who are unable to afford to hire a lawyer than does the Unites States.</p><p>The article concludes that law school clinical programs can model the highest ideals of the legal profession by evaluating potential cases on the legal merits and pedagogical value and not with a concern for whether or not the case or client may be controversial. </p>

The 2001–2002 Military Standoff

2018 ◽  
pp. 83-120
Author(s):  
Moeed Yusuf
Keyword(s):  
United States ◽  
The United States ◽  
Third Party ◽  
Military Force ◽  
The Third ◽  
Cross Border ◽  
Critical Junctures ◽  
Autonomous Behavior ◽  
Military Campaign ◽  
The U.S

This chapter examines the 2001–2002 military standoff that kept India and Pakistan on the verge of war for ten months. Brokered bargaining characterized crisis behavior of the rivals and the U.S.-led third party. India threatened to use military force but pulled back at critical junctures as the United States acted as a guarantor of Pakistan’s promises of curbing cross-border terrorism and raised India’s costs of defying third-party demands to de-escalate. Pakistan promised retaliation against India and harmed the U.S. military campaign in Afghanistan by withdrawing forces from the Pakistan-Afghanistan border, but this “autonomous” behavior was trumped by its propensity to oblige the United States by accepting some responsibility for anti-India terrorism and acting tangibly against militants. The chapter also analyzes the several risks of escalation introduced by India’s and Pakistan’s misperceptions of the third party’s leverage over the opponent.

Part V Remedies and Costs, 26 Third-party Funding in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Blackaby Nigel ◽  
Wilbraham Alex
Keyword(s):  
International Investment ◽  
Third Party ◽  
Access To Justice ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Legal Costs ◽  
Party Funding ◽  
Investment Treaty Arbitration

This chapter discusses the issue of third-party funding in international investment arbitration. Third-party funding has become an established part of the investment arbitration landscape. Despite criticism in some quarters, tribunals and international arbitral bodies have tended to favour the view that third-party funding promotes access to justice rather than encouraging frivolous claims. Tribunals have consistently held that receipt of third-party funding is unlikely to affect a claimant’s position from a jurisdictional perspective and will not affect a claimant’s ability to recover legal costs in cases where tribunals make costs awards. The costs of third-party funding itself may be recoverable in some circumstances. There is a growing tendency among tribunals to require disclosure by funded claimants of the existence and identity of third-party funders. It is, however, unlikely that claimants will commonly be required to disclose the terms of any funding agreement except in rare cases when security for costs is being considered.

Third-Party Funding in International Arbitration: Ownership of the Claim, Consequences for Costs Orders, and Regulation

2020 ◽  
Vol 36 (2) ◽  
pp. 275-295
Author(s):  
Sahana Ramesh
Keyword(s):  
Case Law ◽  
Third Party ◽  
Access To Justice ◽  
International Arbitration ◽  
Specific Question ◽  
Res Judicata ◽  
Party Funding

Abstract The increasing use of third-party funding in international arbitration has given rise to a myriad of challenges. Many of these remain unaddressed. Even though some jurisdictions have sought to regulate the sphere of third-party funding in international arbitration, it remains largely unregulated. The result is that a third-party funder is not held accountable. This article examines the issue of ownership of a funded international arbitration claim, and the consequences of that finding on an arbitral tribunal’s ability to impose costs order on a funder. The objective is to ensure that a funder is playing a role in the arbitral process merely to facilitate access to justice, and nothing more. The examination in this article comprises a review of case law, primarily of English courts, in the context of litigation funding, and then determining whether it is possible to transpose the learnings therefrom to the arbitration context. A brief discussion on the applicability of the doctrine of res judicata, in the context of the issues raised in this article, is undertaken. Finally, the article also considers the best way to regulate the specific question of imposing costs on a third-party funder in international arbitration.

11. Funding Access to Justice

2021 ◽  
pp. 371-414
Author(s):  
Alisdair A. Gillespie ◽  
Siobhan Weare
Keyword(s):  
Civil Litigation ◽  
Third Party ◽  
Access To Justice ◽  
Legal Aid ◽  
Criminal Courts ◽  
Real Possibility ◽  
Before And After ◽  
Alternative Sources ◽  
Party Funding

This chapter examines how litigation is funded. It considers the growth, and eventual decline, in legal aid, and how alternative sources of funding have begun to be used. The chapter considers both criminal and civil litigation. It notes how there is an increase in defendants-in-person before the criminal courts because of restrictions in legal aid. It questions whether this is appropriate, particularly where the loss of liberty is a real possibility. The chapter also considers how civil litigation is now funded. This includes how ‘no win, no fee’ arrangements were at first encouraged, but then subject to restrictions because it was felt the balance of risk vs. gain was inappropriate. The chapter charts the growth of before and after-the-event insurance, and the increase in third-party funding where the litigation is for large sums of money.

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