Contracting-Out of Class Action Litigation: Lessons from the United States

New Zealand Law Review. [2018] 3 NZ L Rev 371 - 398

24 Pages Posted: 14 May 2018 Last revised: 16 Feb 2019

See all articles by Nikki Chamberlain

Nikki Chamberlain

University of Auckland Faculty of Law

Date Written: April 30, 2018

Abstract

New Zealand has been relatively dormant in the area of class action litigation. As a result, the procedural regime for managing class action litigation is developing in an ad hoc manner through judicial discretion. However, recent developments suggest that class action litigation is on the rise in New Zealand. In contrast, class action litigation is declining in the United States. In the face of procedural and substantive uncertainty, New Zealand corporate defendants, like their American counterparts, are likely to pursue other avenues such as class action litigation waivers in arbitration agreements to control management of legal disputes. However, New Zealand should not follow in the footsteps of the United States by enforcing waivers in arbitration agreements to curtail class action litigation. This article explains why corporate defendants are likely to pursue class action litigation waivers in arbitration agreements, the undesirable outcome if class action litigation is prohibited by contractual waivers, and how the judiciary can prevent the enforcement of those contractual waivers. This article also addresses why class action legislative reform is required to provide corporate defendants with a certain and transparent procedural alternative to arbitration in resolving disputes. Civil procedure provides the framework which enables substantive rights to be vindicated. New Zealand class action litigation procedure needs legislative reform so that procedure does not impinge on parties’ substantive rights. PLEASE NOTE THAT ARTICLE AVAILABLE ON SSRN IS A DRAFT. THE FINAL VERSION OF THE ARTICLE (WITH AMENDMENTS) IS AVAILABLE IN THE NEW ZEALAND LAW REVIEW.

Keywords: Litigation, Class Actions, Representative Actions, Civil Procedure, Arbitration, New Zealand

Suggested Citation

Chamberlain, Nikki, Contracting-Out of Class Action Litigation: Lessons from the United States (April 30, 2018). New Zealand Law Review. [2018] 3 NZ L Rev 371 - 398, Available at SSRN: https://ssrn.com/abstract=3171282

Nikki Chamberlain (Contact Author)

University of Auckland Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

HOME PAGE: http://https://unidirectory.auckland.ac.nz/profile/n-chamberlain

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