Extract

A debate about mass problems frequently gets bogged down in a discussion about class actions as a private litigation mechanism to achieve collective redress. This also seems to be the case in Belgium. Every media comment on a mass case provokes a clash between proponents and opponents of American-style class actions. What is often forgotten in these animated discussions is the existence of non-court mechanisms and their possible potential for achieving collective redress. In his New Framework for Collective Redress in Europe, Hodges pleads for an integrated approach. The voluntary and ADR approach, ie direct negotiation, mediation, arbitration, conciliation, and ombudsman systems, must be prioritized. Secondly, there is the (commonly overlooked) potential of public enforcement or regulatory oversight, where public bodies, sometimes merely because of their inherent authority coupled with the threat of damage to a trader’s reputation after the announcement of the imposition of a public penalty, can force this trader to compensate. And finally, as a last resort, Hodges puts forward the private litigation model: resolving collective redress through private collective actions in the court.