Global Deterrence of Wrongful Behaviors: The Quest for a Single Forum in Cross-Border Consumer’s Disputes

Abstract

This paper aims at analyzing current developments in transnational class actions and class arbitration by assessing whether it is currently possible to aggregate cross-border consumer’s disputes in a single forum. The work begins by justifying the quest for a single forum with the positive effects of an effective global deterrence, before turning to U.S. and Europe. The trend in the U.S. seems to go along two paths: limiting foreign plaintiffs and foreign class actions; and allowing mandatory bilateral arbitration agreements in standard consumer’s contracts. In this sense, U.S. courts are diminishing their appeal as sorts of ‘global courts’ for the world’s wrong. Europe, on the contrary, is slowing and gradually discovering the notion of ‘private attorney general’, starting to focus on the private dimension of the enforcement of public interests. However, redress mechanisms modeled on the U.S. class action are still relatively new and in an initial phase, while class arbitration does not seem a likely development in the foreseeable future.Cautious hopes have been recently raised by the broad scope of a handful Canadian securities class actions and some applications of the Dutch Collective Settlement of Mass Claims (WCAM), but in the meantime the quest for a single forum in cross-border consumer’s disputes will have to continue.