In 2012 the British Institute of International and Comparative Law (“BIICL”) was awarded a grant by the European Commission to conduct a study on class action mechanisms in different European Union Member States (which are referred to as collective redress regimes in Europe). In March 2015 BIICL published its long awaited work Collective Redress in Europe – Why and How? This text is a comprehensive review of class action regimes and issues in Europe.
One of the chapters – Cross-Border Actions for Collective Redress – Some Lessons from Canada – provides a distinctly Canadian perspective on these issues. The co-authors John P. Brown and Brandon Kain consider the European Commission’s policy paper on collective redress regimes, which was published in June 2013 after a lengthy, contentious, controversial and tortuous political process. The policy paper contains proposals for addressing the violation of rights granted under European Union law including a non-binding Recommendation “on common principles for injunctive and compensatory collective redress mechanisms in Member States.” As is the case with many political compromises, the Recommendation satisfied almost no one. The Recommendation does not require Member States to implement class action regimes or otherwise reform their existing legal systems, it only urges them to do so. Perhaps the most disappointing aspect of the Recommendation is the adoption of an opt-in rather than an opt-out model for class action regimes.
The focus of the chapter is on how the European Commission’s preference for an opt-in model will affect issues such as (a) jurisdiction and the enforceability of class action judgments in other countries, (b) the need for similar class action regimes in the Member States, and (c) the need for cooperation and coordination between courts in Member States in cross-border proceedings.
These issues are examined through the lens of Canadian class action experience with a view to offering insights into the challenges Member States will likely face when they begin implementing opt-in class action regimes. Canadian lawyers, judges and lawmakers have been dealing with cross-border ?class actions for over twenty years. In the process they have identified many of the key problems that such actions can create and they continue to struggle, mostly on an ad hoc basis, to find solutions for the issues of jurisdiction and enforceability as they arise. Some viable solutions have been identified which are largely dependent on the existence of similar class action or collective redress regimes between countries. These solutions also require cooperation and coordination between courts in the different countries in order to address competing and/or overlapping class actions. Canada’s experience in this area can therefore be quite relevant to the European Union and its independent Member States.