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Abstract: Asserting that class actions are compatible with civil law systems, the author describes the Brazilian system of class actions, comparing it with its American counterpart, and proceeding to place it in the context of other systems' approaches to class action litigation. In this paper, the author presents the Brazilian class action system to an international audience. The author contends that the Brazilian class action system is a unique creation in the way that it addresses aspects of class action litigation such as standing to sue, types of group rights, res judicata and lis pendens. The author states that, the Brazilian experience demonstrates that civil law systems can employ a class suit procedure but cannot transplant the American class action model into their systems without substantial adaptation.
Brazil, class action, civil law system, Public Civil Action Act, Consumer Code, mass torts, res judicata, lis pendens, collective litigation, collective standing, group rights
Abstract: The author proposes the enactment of a Class Action Code in civil law countries. The proposed Model Code extensively regulates all aspects of modern class actions, including standing, adequacy, prerequisites, certification, notice, proof, settlement, judgment, res judicata, lis pendens, attorney fees, injunctive class actions, class action for damages, calculation of damages, distribution of the award, fund for group rights, defendant class actions, etc. The 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 the international experience with class actions. Although the proposal is focused primarily on civil-law countries, it may also prove useful to common law countries considering the adoption or improvement of class action rules.
Class actions, comparative class actions, civil law, comparative civil procedure, comparative law, diffuse, collective, group action, collective litigation, collective action, group rights, parens patriae, associational standing
Abstract: This material is a book written in Spanish on class action suits in civil law systems, with especial examination of the institutions of Brazil. The first chapter contains an introduction. The second chapter reviews differences in the legal systems of Brazil and the United States, concentrating on aspects of civil procedure and class action suits. The third chapter provides a history of the Brazilian class action movement, as well as remarking on the uncertain future of that movement. Chapter four reviews the concept of a class action, and examines the distinctions between a class action and a collective action, as well as further examining the Brazilian institution of collective action. The fifth chapter examines group rights, collective rights and individual rights. Chapter six discusses incompatibilities between concepts of individual civil rights and collective rights and reports on Brazil's experiences. Chapter seven examines the ways in which these seeming incompatibilities may be reconciled, including potential legislative remedies and an exploration of Brazil's approach to reconciling them. Chapter eight discusses issues of lis pendens in class/collective actions. The ninth and final chapter is the conclusion. As noted in the text, the original version of this text was published in English in The American Journal of Comparative Law. This submission includes a table of contents and prologue by Jorge Sánchez Cordero.
Abstract: Despite recent developments, American scholars are among the most parochial in the world. In this article, I share my experience and innovative techniques on teaching comparative civil procedure seminars to US and foreign students. In this seminar, each session addresses a different topic assigned to pairs of students on the first day of class. If possible, each pair consists of one American (usually a JD student) and one foreign student (usually an LLM student.) The American student presents the topic from the point of view of the foreign system and the foreign student presents the topic from the point of view of the American system. In addition to requiring that each student understand a different procedural system, this provides for more engaging discourse because each student will analyze his or her assigned system with a different perspective from that of a lawyer trained in that tradition. This paper was presented at an AALS Annual Meeting, held in San Francisco.
legal education, comparative civil procedure, american legal education, innovative teaching
Abstract: This is an introduction to the ALI/UNIDROIT Project Principles and Rules of Transnational Civil Procedure. This text is the Discussion Draft N. 2. of 2001. At its conclusion, a few years later, it was published as Principles of Transnational Civil Procedure (with the Rules attached as a Reporter's Note) by Cambridge University Press.
Comparative Law, Comparative Civil Procedure, International Litigation, Transnational Civil Procedure, ALI, UNIDROIT
Abstract: This is the original article in Portuguese, in which the author proposes the enactment of a Class Action Code in civil law countries. The proposed Model Code extensively regulates all aspects of modern class actions, including standing, adequacy, prerequisites, certification, notice, proof, settlement, judgment, res judicata, lis pendens, attorney fees, injunctive class actions, class action for damages, calculation of damages, distribution of the award, fund for group rights, defendant class actions, etc. The 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 the international experience with class actions. Although the proposal is focused primarily on civil-law countries, it may also prove useful to common law countries considering the adoption or improvement of class action rules.
difuso, coletivo, colectivo, colectiva, coletiva, comparative civil procedure
Abstract: This is the Fundamental Principles of the ALI/UNIDROIT Project Principles and Rules of Transnational Civil Procedure. This text is the Discussion Draft N. 2. of 2001. At its conclusion, a few years later, it as published as Principles of Transnational Civil Procedure (with the Rules attached as a Reporter's Note) by Cambridge University Press.
Abstract: This is the Spanish translation of a paper originally published in 2002, in which the author proposes the enactment of a Class Action Code in civil law countries. The proposed Model Code extensively regulates all aspects of modern class actions, including standing, adequacy, prerequisites, certification, notice, proof, settlement, judgment, res judicata, lis pendens, attorney fees, injunctive class actions, class action for damages, calculation of damages, distribution of the award, fund for group rights, defendant class actions, etc. The 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 the international experience with class actions. Although the proposal is focused primarily on civil-law countries, it may also prove useful to common law countries considering the adoption or improvement of class action rules.
Abstract: This paper argues, against all Brazilian literature, that Brazilian judges, under the due process of law guarantee, have the duty and the right to control the adequacy of representation in class actions. The paper also presents a comparison with the judicial control of adequacy of representation in US class actions.
Adequacy of representation, class actions, Brazil, Comparative Law, Comparative Civil Procedure, Civil Procedure
Abstract: This is the Rules portion of the ALI/UNIDROIT Project Principles and Rules of Transnational Civil Procedure. This text is the Discussion Draft N. 2. of 2001. At its conclusion, a few years later, it as published as only Principles of Transnational Civil Procedure (with the Rules attached as a Reporter's Note) by Cambridge University Press.
Abstract: This article describes my experience teaching Comparative Civil Procedure for US and foreign students in the past 10 yeas. This is an interactive course, as compared to the essentially "passive" Socratic Method and can be an inspiring experience for both the faculty and the students, because it creates a rare environment for learning and experimentation. The methodology can be used to teach any course from a comparative perspective, like Comparative Contracts, Comparative Torts, Comparative Class Actions, Comparative Antitrust, etc.
Comparative Law, Civil Procedure, International Litigation, Comparative Civil Procedure, Legal Education
Abstract: This paper collects my personal observations regarding the criticisms directed at the ALI/Unidroit project on Transnational Civil Procedure. I argue that, although many of them are important (and those have been accepted and incorporated in the successive versions of the Project) many of them are misdirected. Some of the criticisms are of a political character, beyond the reach of the jurists. Others are rooted in misunderstandings of linguistic, technical or cultural origin, and were resolved through improved language. Others still were caused by a superficial analysis of the Project.
Abstract: The Brazilian Consumer Protection Code is one of the most advanced in the world. Among its most important innovations is art. 6, VIII, which allows the court to shift the burden of proof whenever the claimant is at disadvantage and the allegations are credible. Its objective is to place unequal parties in a position of equality in a system with no discovery device. The rule is written in broad terms and prone to controversy. This paper deals with several of them, including why, how, and when the judge can (and cannot) shift the burden of proof in favor of the consumer.
Comparative Law, Comparative Civil Procedure, burden of proof, burden shift, Brazil
Abstract: This is the Japanese version of Class Actions in Brazil - A Model for Civil Law Countries, 51 American Journal of Comparative Law 311 (2003). The translation was done by Professors Koichi Miki and Hiro Uranishi. Asserting that class actions are compatible with civil law systems, the author describes the Brazilian system of class actions, comparing it with its American counterpart, and proceeding to place it in the context of other systems' approaches to class action litigation. In this paper, the author presents the Brazilian class action system to an international audience. The author contends that the Brazilian class action system is a unique creation in the way that it addresses aspects of class action litigation such as standing to sue, types of group rights, res judicata and lis pendens. The author states that, the Brazilian experience demonstrates that civil law systems can employ a class suit procedure but cannot transplant the American class action model into their systems without substantial adaptation.
Abstract: This paper was delivered at a conference in Paris about the ALI Transnational Civil Procedure Project and was published as a response to the comments and criticisms received in that event. It was published in French, with an English version attached.
Abstract: This is the Italian translation of a paper originally published in 2002, in which the author proposes the enactment of a Class Action Code in civil law countries. The proposed Model Code extensively regulates all aspects of modern class actions, including standing, adequacy, prerequisites, certification, notice, proof, settlement, judgment, res judicata, lis pendens, attorney fees, injunctive class actions, class action for damages, calculation of damages, distribution of the award, fund for group rights, defendant class actions, etc. The 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 the international experience with class actions. Although the proposal is focused primarily on civil-law countries, it may also prove useful to common law countries considering the adoption or improvement of class action rules.
collettivo, collettiva, diffuso, Italian Law, diritto comparato
Abstract: The author proposes the enactment of a Class Action Code in civil law countries. The proposed Model Code extensively regulates all aspects of modern class actions, including standing, adequacy, prerequisites, certification, notice, proof, settlement, judgment, res judicata, lis pendens, attorney fees, injunctive class actions, class action for damages, calculation of damages, distribution of the award, fund for group rights, defendant class actions, etc.
The 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 the international experience with class actions. Although the proposal is focused primarily on civil-law countries, it may also prove useful to common law countries considering the adoption or improvement of class action rules.
This French version was translated by Guy Sohou and Caroline Gilbert and has an introduction from Stefaan Voet, from the University of Ghent Law School.
Class actions, comparative class actions, Action Collective, civil law, comparative civil procedure, comparative law, diffuse, collective, group action, collective litigation, collective action, group rights, parens patriae, collective redress, associational standing
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