Public Enforcement & A(O)DR as Mechanisms for Resolving Mass Problems: A Belgian Perspective
Astrid Stadler & Christopher Hodges (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims (Edward Elgar, 2013) (Forthcoming)
21 Pages Posted: 6 Apr 2013
Date Written: April 4, 2013
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. What is often forgotten in these animated discussions is the existence of non-court mechanisms. In this paper, I give an overview of the Belgian private enforcement, public enforcement, and A(O)DR pillars and their possible potential for achieving collective redress.
With respect to the private litigation model, three class action proposals were launched in 2009 and 2010. All three proposals failed since a political consensus could not be reached. In early 2012, the minister of consumer affairs announced that he is working on a new class action proposal.
Belgium has multiple public enforcers/regulators that can potentially play a key role in tackling mass cases. An analysis of five of those enforcers/regulators reveals their exclusive focus on deterrence and their limited powers and tools in offering restitution and imposing civil sanctions. In addition, Belgium has a very liberal, and in mass cases frequently used, partie civile (or piggyback) technique for crime victims, in the sense that these victims can formulate their civil claim during the criminal trial, and can piggyback the evidence brought forward by the Public Prosecutor. An analysis is made of the advantages and disadvantages of this technique.
Finally, Belgium has a well-developed ODR (Online Dispute Resolution) device, called Belmed. On the one hand, Belmed contains consumer information on how to settle a dispute in an amicable way. On the other hand, Belmed offers the possibility of making an online application for arbitration, conciliation, or mediation. The idea is to create a single digital access point for the consumer and tradesman.
Keywords: collective redress, Belgium, class actions, public enforcement, regulator, partie civile, ADR, ODR
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