Collective Redress Arbitration in the European Union

Abstract

Over the last decade, collective redress has become increasingly important in the European Union (EU), with multiple initiatives stemming from EU bodies and individual Member States. However, most discussions in the EU about large-scale legal relief focus primarily if not exclusively on actions arising in the judicial context, even though courts are not always the best or only place to resolve large-scale legal disputes. However, the European emphasis on judicial mechanisms appears to be based on two fundamental misconceptions.

First, European scholars and policymakers fail to appreciate the factors that drive development of large-scale arbitral mechanisms and the extent to which those features exist in certain EU Member States. Second, the vast majority of European lawyers and lawmakers mistakenly believe that US-style class arbitration – a mechanism that is far too similar to US-style class litigation to attract European interest – is the only type of large-scale arbitration possible, even though a number of large-scale arbitral procedures that do not mirror US-style opt-out representative class mechanisms have already been developed and are either already available in Europe or are amenable for adoption in Europe.

This chapter seeks to clarify these two misperceptions so as to provide scholars and policymakers with the type of information that is vital to the proper development of European law and policy. The discussion includes an analysis of the legal and social pressures that influence the development of large-arbitration, so as to determine whether and to what extent new arbitral mechanisms might develop or flourish in EU Member States, as well as an overview of existing and anticipated forms of collective redress arbitration in Europe. The chapter also provides guidance regarding the development of large-scale arbitration in Europe as well as insights into the use of consensual dispute resolution mechanisms (ie, mediation or conciliation) in the context of large-scale legal disputes in Europe.

Keywords: class arbitration, collective redress, collective arbitration, comparative law, European Union, collective settlements, international commercial mediation, international commercial arbitration, US Supreme Court