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This volume of essays draws together research on different types of collective actions: group actions, representative actions, test case procedures, derivative actions and class actions. The main focus is on how these actions can enhance access to justice and on how to balance the interests of private actors in protecting their rights with the interests of society as a whole. Rather than focusing on collective actions only as a procedural device per se, the contributors to this book also examine how these mechanisms relate to their broader social context. Bringing together a broad range of scholarship from the areas of competition, consumer, environmental, company and securities law, the book includes contributions from Asian, European and North American scholars and therefore expands the scope of the traditional European and/or American debate.

• Examines the subject of collective actions in a new way that cuts cross several substantive fields of law

• Unites, for the first time, the expertise from legal fields discussing the same issues, such as collective actions and access to justice

• Brings together original scholarship from Asia, North America and Europe in a field where the focus has previously only been on Europe and/or the US, and expands the discussion beyond limited geographical areas

• Focuses on the use of collective redress mechanisms not only as a procedural device per se, but also in their broader social context

Figures	xvii
Tables	xix
Contributors	xxi
Preface	xxiii
Acknowledgments	xxv
Abbreviations	xxvii
1 Access to justice and collective actions: ‘Florence‘ and beyond Stefan Wrbka, Steven Van Uytsel, and Mathias M. Siems	1
Introduction	1
The Florence Project and access to justice	3
From ‘diffuse’ to ‘multilayer’ interests	8
The role of collective actions in the context of multilayer interests	10
Structure of and contributions to this book	12
Conclusion	19
Part I. Setting the Stage	21
2 European consumer protection law: Quo vadis? – thoughts on the compensatory collective redress debate Stefan Wrbka	23
Introduction	23
Multilayer interests	24
Access to justice	27
Redress tools	31
Green Paper on Collective Consumer Redress	38
The way(s) forward	42
Conclusion	54
3 Collective actions in a competition law context – reconciling multilayer interests to enhance access to justice? Steven Van Uytsel	57
Introduction	57
Access to justice and collective actions	60
The justice concepts envisioned by law enforcement	60
Access to justice as redress for harm	61
Harm in a competition law context	63
Harm determined by the protective scope of competition law	63
The stakeholders in competition law infringements	67
Relationships among the stakeholders	70
Multilayer interests among the stakeholders	70
Tensions among the multilayer interests	72
Collective actions in a competition law context	73
Reconciling tensions through collective actions	75
Alleviating tension through joinder procedures or test cases	75
Representative actions’ influence on tension among individual interests	76
A tension too big for class actions	78
The tension between individual interests and the public interest	81
Compensatory justice and the impediment of legal standing	81
The stakeholders and legal standing	82
Competitors	82
Direct purchasers	83
Indirect purchasers	84
Umbrella customers	84
Deadweight loss customers	85
Creditors, shareholders, employees and suppliers	86
Collective actions and compensatory justice	86
What about deterrence?	87
Hybrid enforcement mechanisms	89
Conclusion	91
4 Private enforcement of directors’ duties: Derivative actions as a global phenomenon Mathias M. Siems	93
Introduction	93
The problem of enforcing directors’ duties	94
Derivative actions in six countries	96
The United States, Japan and France: more similarities than differences?	97
The United Kingdom, China and Germany: do the new laws make a difference?	101
Discussion: convergence and legal families	105
Derivative actions in twenty-five countries	106
Methodology and dataset	107
The development of the law between 1995 and 2005	109
Legal families, complements and substitutes	111
Conclusion	115
Part II. Cross-continental perspectives on collective actions	117
5 From peasant to shareholder: Divergent paths of group litigation in Tokugawa Japan and England Sean Mcginty	119
Introduction	119
Feudal origins: the cases of Martin and Usuha	122
The issues of group litigation	122
Martin's case	123
The Usuha case	123
A common heritage?	125
New groups: joint stock companies and kabunakama	127
English joint stock companies	128
Kabunakama	130
Explaining the difference	134
The Tokugawa legal system	134
The nature of the kabunakama	137
Social and political context	138
The difference	139
Conclusion	141
6 Reconciling multilayer interests in environmental law: Access to justice in environmental matters in the European Union and the United States Monika Hinteregger	143
Access to justice as a means to reconcile multilayer interests in the protection of the environment	143
The public interest: protection of the environment as a public duty	143
The private interest: access to justice for individual persons	143
Reconciling individual and collective interests: access to justice for environmental organizations	147
Collective actions in the environmental law of the European Union	148
The Aarhus convention and its implementation in EU law	148
Aarhus convention	148
Implementation acts	149
Collective actions	151
The 2004 environmental liability directive	153
The availability of collective actions under U.S. law	154
The public trust doctrine and claims for natural resource damage	154
Citizen suits	157
Class actions	160
Comparison and conclusion	161
Outlook: collective action in environmental torts	164
Part III. A need to enhance collective actions in Japan?	167
7 Recent problems of group rights protection for consumers in Japan Kunihiro Nakata	169
Introduction – localization of the problem	169
The actual state: the system for relief of consumer group damages	171
The debate about a group action system	173
Different types of collective claims	173
The ‘opt-out solution’	174
The authorization for the representative plaintiff	175
The affected individual's right to choose	176
Individuality of claims	176
The problem of money distribution	177
Payment for pain and suffering as a sanction	178
The opt-in solution	178
The basic structure of the opt-in solution	178
Problematic points	178
The two-step solution	179
The meaning of the basic type	179
Problematic points	179
The claim for skimming off unjust enrichment	180
Other problems – the structure surrounding qualified consumer organizations	180
Conclusion	181
8 Can collective actions be a solution to improve access to justice in Japan? Examination of measures to enhance the private enforcement of competition law in Japan Akinori Uesugi	184
Introduction	184
Importance of private enforcement of competition law	185
Evaluation of public enforcement in Japan	185
Public enforcement record of cartel regulations	185
Trends in public enforcement of cartel provisions	186
Amendment of the AMA in 1977	189
Sanctions on cartels	189
Evaluation of private enforcement in Japan	192
General picture of private enforcement in Japan	192
AMA Article 25 suits	192
Article 709 civil code suits	194
Injunction suits	194
Concentration of enforcement power in the JFTC and THC	195
Why is the enforcement power concentrated in the JFTC and THC?	195
Gradually reduced concentration of enforcement powers	197
Changes to the previous systems	197
Analysis	199
Comparison with EU modernization reform	200
Relationship between the JFTC's fact finding and the court's fact finding	201
Finding of facts in cases decided by recommendation decisions	201
Recommendation decisions	202
Consent decisions	204
Changes to the recommendation decision system in 2005 and their meaning for private enforcement	204
Increase in cases concluded after hearing proceedings	205
Are current damage awards by courts sufficient to recover damages?	207
Amendment of Article 84 and its meaning for private enforcement	209
Possible impacts of eliminating the JFTC hearing proceedings on private enforcements in Japan	210
Elimination of Article 70–15 and its possible effects on private enforcement in Japan	211
The role of the JFTC in facilitating private damage suits	212
Impacts on the right to litigate	212
Measures to encourage private enforcement of competition law in Japan	214
Reasons for inactive private enforcement	214
Situation	214
Analysis	214
Introduction of representative suits by qualified associations via the excessive premium and misrepresentation act violations	216
Conclusion	216
Part IV. Collective enforcement of company and securities law	219
9 Does more litigation mean more justice for shareholders? the case of derivative actions in Vietnam Quynh Thuy Quach	221
Introduction	221
Newly adopted litigation rights – more ways for oppressed shareholders to access Justice	223
Poor enforcement and the gap between promises of law and reality	223
More litigation rights for shareholders – attempt by lawmakers to widen the way for shareholder access to Justice	226
Derivative action – shareholders’ ‘weapon for others’ interests	229
Forgotten derivative suits in their origin country	229
Driving forces in the emergence of derivative suits in East Asia Countries	231
The case against more litigation in Vietnam	234
Insufficiencies of the court	234
Critical paucity of judges	234
Capacity of judges is insufficient	235
Court judgments are commonly unenforceable	235
Disfavour of litigation by shareholders	236
An immature legal profession and the hurdle of litigation costs	238
Small lawyer population	238
Limited litigation skills	239
Litigation costs poorly incentivize lawyers to initiate cases	239
Policy implications	241
Litigation as hardship route to justice for shareholders	241
Less costly mechanisms as possible alternatives for litigation	242
Strong regulator	242
Arbitrators	243
Conclusion	244
10 The United States Supreme Court and implied private cause of actions under SEC Rule 10b-5: The politics of class actions Arthur R. Pinto	245
Introduction	245
The development of an implied private cause of action under Rule 10b-5	248
The Supreme Court and Rule 10b-5 class actions	252
The Burger Court (1969–1986)	254
An important exception	258
The Rehnquist Court (1986–2005)	260
Congressional action	262
The Roberts Court (2005–present)	265
Conclusion	270
Part V. Indirect purchasers and collective actions	273
11 Indirect purchaser suits under the class action fairness act: Reconciling multilayer interests in antitrust litigation William H. Page	275
Introduction	275
Class certification in pre-CAFA indirect purchaser litigation	279
Class certification in indirect purchaser litigation after CAFA	282
The continuing failure of indirect purchaser suits	293
Conclusion	298
12 Collective actions by indirect purchasers: Lessons from the Japanese oil cartel cases Simon Vande Walle	299
Introduction	299
Relevance of Japan's experience with indirect purchaser litigation	300
Overview of the three oil cartel cases	302
The kerosene cartel	303
The consumers go to court	305
The procedural mechanism: the Japanese class action	306
A bitter settlement in the first Tokyo case	308
Rejection by the Supreme Court in the two other cases	309
The merits of indirect purchaser litigation	312
Access to justice	312
Direct purchasers do not sue	313
The problems with indirect purchaser litigation	314
Costly and inefficient: ‘it's just not worth it’	314
Attorneys’ fees for plaintiffs exceeded the potential recovery	315
The total costs caused by the litigation exceeded the potential recovery	316
Lengthy and complex	318
Implications for indirect purchaser litigation in the EU	321
Indirect purchaser litigation is unlikely to be effective with an opt-in mechanism and traditional rules on causation and damages	321
Possible solutions	323
First option: an opt-out class action	324
Second option: no standing for indirect purchasers	326
Annex: translation of the Supreme Court Judgment in the Tsuruoka oil cartel case	327
Part VI. Recent developments in and future perspectives on collective actions	339
13 Collective enforcement: European prospects in light of the Swedish experience Annina H. Persson	341
Introduction	341
Structure and purpose of this chapter	343
The Swedish group proceedings act	346
The National Board for consumer complaints	350
Group action at ARN	350
KO as representative for individual consumers	354
Evaluation of the Swedish group proceedings act	355
The Swedish view on the green paper on collective redress	357
Collective redress on its way?	359
Conclusion	362
14 Transnational class settlements: Lessons from Converium Benoît Allemeersch	364
Introduction	364
The Dutch class settlement	366
The path leading to Converium	366
The Converium case	368
The international Converium settlement and the Dutch court ruling	368
The Dutch Courts’ arguments in favour of jurisdiction	369
The obligation to pay and the applicability of Article 5(1)	371
Forum Connexitatis	374
Is a forum clause the solution?	376
Converium, the aftermath	378
Access to justice	379
Multilayer interests	380
Conclusion	382
15 The impetus for class actions reform in England arising from the competition law sector Rachael Mulheron	385
Introduction	385
The impetus for class actions reform in the competition law sector from a judicial and litigant perspective	387
Faltering attempts to use the representative rule	387
A representative statutory action, under the Competition Act 1998, is of limited utility	391
OFT-imposed fines do not lead to many subsequent private actions for compensation	394
The ‘missing’ competition law cases in England	396
The need for ‘add-on’ English classes to U.S. federal class actions for competition law infringements	398
Important commentary by the President of the English Competition Appeal Tribunal	399
The impetus for class actions reform in the competition law sector: an examination of the governmental position	400
The OFT's curtailed function	400
Political admissions that there is a problem, both in England and in the EU	401
The Civil Justice Council's recommendation and the Ministry of Justice's response	406
The certification hurdles for competition law collective actions	407
Conclusion	411
Index	413