Cross Border Class Actions PDF Download

While much has been written about the advantages and disadvantages of large-scale litigation and arbitration from a public policy perspective, relatively little has been written about how parties can affect the resolution of mass disputes as a matter of contract, particularly in cases involving parties from several different countries. This chapter therefore considers whether and to what extent standard contractual devices, including choice of law agreements, choice of court agreements and arbitration agreements, can be used in cases involving large-scale international legal injuries. The discussion begins by considering the various ways that large-scale disputes can arise, since different fact patterns require different types of contractual responses, then outlines the kinds of problems that arise in cases of cross-border collective redress, including those of a substantive, regulatory and procedural nature. The analysis then evaluates a variety of possible solutions to these problems, including those generated by the state as well as those generated by private parties. The latter discussion not only addresses procedural agreements (including waivers of mass claims) that arise on a pre-dispute basis, it also considers the possibility of obtaining consent to various procedures on a post-dispute basis, a technique that has long been said to be impossible but that is the only feasible option in certain fact patterns or legal regimes. In undertaking this analysis, this chapter challenges conventional wisdom suggesting that parties to large-scale international disputes are either unwilling or unable to create carefully tailored, mutually agreeable procedures through private contract measures. Instead, this discussion shows that it is in fact possible for parties to international commercial and investment disputes to adopt both pre-dispute and post-dispute agreements that reduce the time, cost and uncertainty associated with global class actions and cross-border collective redress, thereby avoiding the numerous problems associated with contemporary litigation practice.