There is a consensus in Europe that collective action mechanisms need to include correct safeguards in order to prevent abuse. This policy brief gives an overview of the main types of safeguards that are found in collective judicial procedures. It draws on extensive research into class action and collective redress laws across the world.
Four consequences need to be understood in forming policy on collective actions:
- many safeguards involve economic aspects of litigation that are changing at national level.
- it appears to be almost impossible to select a set of safeguards that will guarantee that only meritorious cases will be brought and no abuse will occur.
- there is as yet insufficient empirical evidence to conclude that safeguards have worked in Europe in preventing abuse.
- there is a classic ‘catch-22’ situation - if safeguards are put in place that give adequate protection against abuse, the collective litigation procedure will itself not work in providing widespread access to justice.
Accordingly, the alternative regulatory, negotiated, or alternative dispute resolution (ADR) solutions appear far more attractive as means of delivering collective redress.