Class Actions in Context
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Class Actions in Context

How Culture, Economics and Politics Shape Collective Litigation

Edited by Deborah R. Hensler, Christopher Hodges and Ianika Tzankova

In recent years collective litigation procedures have spread across the globe, accompanied by hot controversy and normative debate. Yet virtually nothing is known about how these procedures operate in practice. Based on extensive documentary and interview research, this volume presents the results of the first comparative investigation of class actions and group litigation ‘in action’, in the Americas, Europe, Asia and the Middle East.
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Chapter 8: A class action ‘mash-up’: In Re Royal Dutch/Shell Transport Securities Litigation

Deborah R. Hensler


The global expansion of class actions and other group litigation devices over the last decade provides rich fodder for comparative law scholars interested in legal transplants. The conventional analysis of legal transplants is that they are rarely successful. Unless a transplanted doctrine or procedure meshes well with other aspects of legal regimes and legal culture it is difficult for it to take root. Over the last two decades, collective litigation procedures have spread outside the United States (US). But, consistent with the comparativists’ analysis, except where additional changes have occurred in substantive law, procedural rules and professional codes, the formal adoption of a class action procedure outside the US has failed to produce much class-based litigation. The three most significant formal obstacles to the use of class action procedures in jurisdictions that have adopted them are: (1) a bar against monetary damages in many jurisdictions’ class action statutes; (2) an almost universal prohibition against lawyers charging contingency fees in any civil litigation; and (3) fee-shifting rules. As discussed in Chapter 1 of this book, these rules limit incentives for attorneys to represent parties in class actions while imposing substantial risks on both class counsel and class representatives. However, formal rules provide an incomplete picture of the operations of legal regimes. ‘Law in action’, shaped by interested parties, lawyers and judges, may produce legal behavior that is not anticipated by formalist analysis. One vehicle for such unanticipated outcomes can be termed a legal ‘mash-up’.

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