Cultural Dimensions of Group Litigation: The Belgian Case

Abstract

People assume that only the U.S. has class actions, and that assumption is increasingly wrong. The existence of mass harms with large numbers of claimants has created challenges for access to justice, judicial efficiency, and the enforcement of legal norms that make traditional individual litigation unworkable. Therefore, many European countries are struggling to craft procedural mechanisms to allow the resolution of group claims in a way that incorporates the helpful parts of U.S. class actions while avoiding its inefficiencies and potential abuses.

This Article will discuss the current debate in Belgium. It begins, in part I, by putting that debate in the European context and by describing the current Belgian dilemma. Part II sets out three proposals for a Belgian class action device, highlighting their common elements, as well as their difficulties. Part III analyzes those proposals in light of class action theory (class action goals, standing, funding and financing, remedies, and the role of the courts), arguing that none of the proposals have been sufficiently thought out and that each needs amendment or elaboration. Finally, part IV concludes by putting the civil class action in the larger context of processes for dealing with group harms and argues that a holistic approach is needed.

Keywords: group litigation, complex litigation, class actions, Belgium