Challenges of Representation and Distribution
Edited by Jenny Steele and Willem H. van Boom
Chapter 5: Objectives, Mechanisms and Policy Choices in Collective Enforcement and Redress
5. Objectives, mechanisms and policy choices in collective enforcement and redress Christopher Hodges INTRODUCTION 1. This chapter seeks to frame the European debate on collective redress by distinguishing between the key objectives, namely behaviour control and compensation, and between the key mechanisms that are available, namely public and private enforcement. It is argued that these distinctions are of fundamental importance for two reasons: firstly, in understanding the differences and similarities between American class actions and European collective redress models, and secondly, in identifying the policy choices that are currently being debated in Europe. Much of the European debate about collective redress has made three central but erroneous assumptions. These are, firstly, that the architecture of the legal systems in the United States of America and in Europe, and hence their primary enforcement goals, are the same; secondly, that the class action as used in the United States, which is easily the most familiar model for collective redress,1 can be transplanted into European legal systems to perform the same function in Europe as it does in the United States; and thirdly, that a class action procedure, or a modification of it, is the only appropriate procedure for delivering collective redress. This chapter will indicate why those assumptions are erroneous by starting at the fundamental level of identifying the basic policy objectives in collective redress, then proceeding to analyse the different architectural models of the United States and European legal systems, and finally suggesting a framework within which the various procedures...
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