Lessons from America
Edited by Jürgen G. Backhaus, Alberto Cassone and Giovanni B. Ramello
Chapter 18: The Class Action Code: A Model for Civil Law Countries
Antonio Gidi 1. INTRODUCTION This project’s objective is to inspire the creation of the best possible code for class action suits, in light of the needs and peculiarities of civil law countries and international experience with class actions (or collective actions, as they are more appropriately called). The proposal offered below represents the author’s choices among possible solutions to problems that arise in the judicial protection of group rights. Each possible solution has its own advantages, disadvantages, and opportunities for abuse. Many rules herein recommended are repetitions, adaptations, or improvements of existing rules in other legal systems. Others are more innovative, and are the fruit of the author’s vision of the class action process as a whole, influenced by comparative procedural law, both individual and collective, particularly derived from the law of Brazil, the United States, Canada, France, Italy, and Scandinavia.1 One of the project’s contributions is to eliminate unjustified procedural differences in class actions. For example, such differences exist in Brazilian and American class actions as a result, merely, of chance and historical mistake. There is nothing that justifies why notice in American class actions for damages should be more rigorous than that in injunctive class actions, or why res judicata in Brazilian class actions should be a function of the type of claim involved. This is an opportunity to correct such distortions. Some differences in class action proceedings, however, are legitimate in light of the peculiarities of various types of claim or fact pattern. For this reason, the...
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