Procedural Remedies Research Articles

United We Stand, Divided We Fall? Collective Redress in the EU, its Lack of Regulation in EU Procedural Law, and Its Impact on the Insurance Sector

The lack of harmonized collective redress mechanisms in EU private international law results in a substantial increase of litigation risks that are hardly manageable for insurers. Regulation of collective redress mechanisms at EU level is hence desirable. The vertical right to a fair trial as well as the effet utile enables the EU under certain conditions to introduce collective redress mechanisms. The doctrine of implied powers, Art. 114 TFEU as well as Art. 81 TFEU can serve as competence norms in this respect. The introduction of harmonized rules on collective redress mechanisms is hence desirable from the perspective of European insurance law. To cope with the newly emerging risks from the existing incentives-collective-redress-regime, insurers require amending a couple of practices: The risks involving from collective redress in connection with the European law of conflicts require action at European level. In order to avoid litigation risks, the insurance industry requires establishing a steady communication strategy with private intermediaries, who have a special standing in collective redress mechanisms. Insurers might amend their insurance policies in order to cope with these risks. The developmnet of a new insurance product coping with the special litigation challenges from collective redress procedures is advisable.

Proceduralisation’s Triumph and Engagement’s Promise in Socio-Economic Rights Litigation

Three of the Constitutional Court’s socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfil their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend – an aspect reflected in the Court’s emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly developed the engagement remedy can give poor people and their advocates an important and powerful enforcement tool. At the same time, engagement can help strengthen and promote consistent attention to the constitutional values these rights protect. Tapping this potential requires the Constitutional Court and lower courts to apply the remedy more consistently, to develop its requirements more fully and to apply those requirements robustly where government fails to engage meaningfully on social welfare policy. The courts are only the starting point, however. For engagement to truly succeed, government must develop comprehensive engagement policies and institutionalise those policies at all levels. Finally, civil society must expand its role beyond pressing for engagement in individual cases into advocating for such institutionalisation.

Detention, the War on Terror, and the Federal Courts

Between 2004 and 2009, the United States Supreme Court relied numerous times on habeas corpus to protect the rights of citizens and of aliens detained after 9/11. Various claims could be marshaled to bracket the 9/11 decisions - as “war” cases; “Guantanamo” cases; “torture” cases; aberrational responses to documented procedural unfairness; unusual instances of federal pretrial detention; and either as extraordinary judicial rejections of challenges to the Court’s authority or as disappointingly narrow procedural remedies licensing forms of preventive detention. Further, one could argue that the specter of terrorism raises normative questions distinct from those related to confinement for other reasons.But neither the problems nor the law produced through 9/11 detention are exotic. Rather, they are continuous with judicial responses to decisions by governments trying to maintain peace and security and, hence, incapacitating some individuals feared likely to inflict grave harm. Officials deal with uncertainty about which persons are threatening in the contexts of 9/11, of ordinary criminality, and of border regulation. In response, more than two million persons are detained in the United States, and some 25,000 segregated in solitary confinement in “supermax” facilities. Courts in turn have, over the last several decades, addressed or demurred on claims about the illegality of both the length and conditions of confinement, and Congress has repeatedly sought to structure or limit routes that various kinds of detainees may take to court.Therefore, the 9/11 decisions are exemplary of what Henry Monaghan termed the “timeless” questions within the federal courts canon about the role of courts in this constitutional order. One sees, repeatedly, the many effects of “foreign” law on U.S. precepts, as well as the distinctive contributions made by courts, obliged to function independently, to treat all persons as equally entitled to dignity, and to work in public. But the limited role for courts is also vivid; even as adjudication can frame some parameters of confinement, the protection of human dignity depends on a diverse set of officials interacting at all levels and in all sectors of government.

Vom Widerspruch zum informalen Beschwerdemanagement. Siegt der “Verhandlungsstaat“ über den “hoheitlichen Anordnungsstaat“?

In the context of modernising the administration, and despite of severe scholarly criticism, many German States have abolished on a large scale the redress procedure (“Widerspruchs-” or “Vorverfahren”). The abolition is justified by the alleged failure – partial or total – of the redress procedure. Abolition, thus, seems to be a necessary reform and a characteristic of a modern administration. Preliminary empirical evaluations now enable us to assess carefully the consequences of the abolition. At the same time, the results allow us to draw conclusions regarding the effects and functions of the redress procedure. Administrative practise has revealed compensatory mechanisms that have developed to replace the (abolished) redress procedure in order to achieve the same effects through alternative methods of communication with the citizens. The supporters of the abolition enthusiastically hail these replacement mechanisms as a contribution towards a citizen-friendly management. To examine this assessment, this article summarises the practical effects of the procedural reduction. A typical feature of the observed administrative practises is their informality. Informalisation is to be reviewed sceptically because of its potential to discriminate as well as for its tendency to re-formalise.

Financial Investors as Consumers and Their Protection: Recent Italian Legislation from a European Perspective

The present paper is firstly concerned with protections of investors in the Italian legislation and within a European context. Part I shall discuss in detail the definition of ‘investors’ as consumers in the European as well as in the Italian legislation. Part I shall therefore provide the reader with sufficient constructive elements in order to understand the present inconsistencies of definitions that instead deserve the utmost attention at both European and national levels. Secondly, in contrast with a legislative policy that seems to encourage recourse to private remedies, the argument supported in Part II of this paper questions the effectiveness of excessive private remedies if they are not buttressed by a consistent and rational framework. After dealing with the Italian offer of out-of-court settlement procedures (guarantee indemnification funds; no-fault funds) and collective redress procedures (collective injunctions; damages class actions; compulsory settlement), the argument put forward in Part II of this paper is that private remedies and access to justice lack clarity and are still excessively complex. An efficient protective system should first seriously enforce public remedies available (criminal sanctions and fines); secondly, it should simplify remedies and access to justice through the establishment of a hierarchy of remedies mandatory settlement attempts should come first, leading to an indemnity guarantee and excluding other ordinary suits. Only in case of failure an ordinary lawsuit may then be brought, either via individual actions or through class actions for damages, leading eventually to the awarding of economic damages. Last: access to indemnity funds should be permitted only in cases of defendant insolvency.

Consumer Protection - Problems and Prospects

Consumer Protection - Problems and Prospects

COLLECTIVE REDRESS PROCEDURES–EUROPEAN DEBATES

AbstractCollective redress mechanisms for consumer claims seek both to allow legal systems to accommodate mass litigation without being overwhelmed and to enable litigation to be viable where individual claims would not be economic. The article maps a number of recent reforms and reform proposals relating to consumer collective redress at national level and comments on EU developments. It notes that there is insufficient recognition of the differences between schemes geared at managing mass litigation as opposed to those aimed at facilitating otherwise non-viable claims. There are however signs that a European style of collective redress procedure is developing, which emphasize the role of public authorities and consumer organizations as gatekeepers to collective redress. The EU is unlikely to be able to impose collective redress procedures on national civil procedures, but the EU could prompt Member States to reflect on the need for national reforms. There may be limited scope for an EU mechanism to address the problem of individually non-viable consumer claims. This would however have to address certain fundamental issues such as the opt-out mechanism, cy-près distribution and funding if consumer organizations are to be encouraged to bring such actions. At a legal doctrinal level, it is interesting to note the influence of comparative studies on policy development within Member States as well as at the EU level.

Proposition 11 - What It Will Do

THE CALIFORNIA Journal of Politics & Policy Commentary Proposition 11 – What It Will Do Darry Sragow University of Southern California How legislative district lines are drawn in California is not exactly on the minds of most Californians when they wake up in the morning. If you were to ask an ordinary citizen to rank this issue’s relative importance compared with others such as education, the economy, and traffic congestion, this one probably comes in lower than which toothpaste gets teeth whiter than white. But conventional wisdom in political Sacramento notes that our legislature is ideologically gridlocked and has prescribed Proposition 11 as a procedural remedy. Democrats are too far to the left, Republicans too far to the right to compromise, it is said, because they represent www.bepress.com/cjpp Volume 1, Issue 1, 2009 safe seats where the election is won in the primary, not the general. Proposition 11 won a narrow victory in November not because most voters noticed any of this, but because, for inexplicable reasons the officeholders and party officials who could have easily funded a campaign to defeat it, a campaign that would have in all likelihood succeeded, took a hike. Competition in politics, as in the economic market place, is a good thing. It leads to innovation in policy and to greater citizen interest in the process. But whether Prop. 11 will make a difference in any political or policy outcome in California is entirely unclear, for at least three reasons. First, of course, is the law of unintended consequences. The complex scheme imposed by this measure to resolve how district boundaries will be determined may or may not produce a result that is dramatically different than if the same host of characters who have been doing this behind closed doors for years were left unmolested.

Corporate Governance and Emerging Markets: Lessons from the Field

Although it may be too early to pronounce on the relative effectiveness of various capital market-driven corporate governance initiatives, experiences in emerging markets over the last decade, especially Latin America, lead to some preliminary conclusions. These observations may have some predictive value in gauging the potential effectiveness of any particular initiative. Voluntary codes and procedural remedies drawn from Anglo-American law, for example, may not be the most effective means of channeling market forces to the improvement of corporate governance in continental European-style legal systems. These transplants may behave a little differently than expected; at worst, they may have somewhat perverse consequences, where an internationally recognized, but domestically ineffective, rule is introduced into a system. The Latin American cases studied are instructive in this regard, as governance mechanisms were introduced in multiple guises along a continuum of private and public rules, amplifying the prospects of effectiveness.

How Bilateral Investment Treaties Can Protect Foreign Investors in the Arab World or Arab Investors Abroad

Bilateral investment treaties generally provide investors with neutral, effective protections when investing abroad. Arab countries have been active in entering such treaties and at present the Arab world offers one of the world’s largest bilateral investment treaty networks. This article discusses the substantive protections and the procedural remedies available to foreign investors in the Arab world or to Arab investors abroad and presents ways of structuring investments in order to maximize bilateral investment treaty protections.

Calculating Reaction Rates with Partial Hessians: Validation of the Mobile Block Hessian Approach.

In an earlier paper, the authors have developed a new method, the mobile block Hessian (MBH), to accurately calculate vibrational modes for partially optimized molecular structures [J. Chem. Phys. 2007, 126 (22), 224102]. The proposed procedure remedies the artifact of imaginary frequencies, occurring in standard frequency calculations, when parts of the molecular system are optimized at different levels of theory. Frequencies are an essential ingredient in predicting reaction rate coefficients due to their input in the vibrational partition functions. The question arises whether the MBH method is able to describe the chemical reaction kinetics in an accurate way in large molecular systems where a full quantum chemical treatment at a reasonably high level of theory is unfeasible due to computational constraints. In this work, such a validation is tested in depth. The MBH method opens a lot of perspectives in predicting accurate kinetic parameters in chemical reactions where the standard full Hessian procedure fails.

Are Regional Trading Agreements Beneficial for Developing Countries?

This paper evaluates the effects of preferential agreements between several economic blocs and areas. The main aim is to investigate whether regionalism has foster intra or/and extra blocs international trade, taking into account the existence of slope heterogeneity over time and across countries and testing whether a dynamic model is preferred to the traditional static specification of the gravity model. This paper argues that the gravity model should be best estimated using Blundell and Bond's (1998) system-GMM estimator. This procedure remedies some econometric problems such as regressor endogeneity, measurement error and weak instruments, and controls for time-invariant country-specific effects such as distance or common language.

How Not Being Sanctioned by a Community Instrument Infringes a Person's Fundamental Rights: The Case of Segi

In the attempt to fight international terrorism, the European Union (EU) has begun to sanction individuals. Alarmingly, these sanctions are adopted in a judicial vacuum. The EU labels natural and legal persons as terrorists without providing the necessary procedural remedies to challenge such allegations and thereby infringes the right of access to justice of those sanctioned. In particular, the second (Common Foreign and Security Policy — CFSP) and third (Justice and Home Affairs — JHA) pillars of the EU do not provide the judicial protection required for such measures in a state of law. An incidental judicial review of those listings is possible only where they are followed by an actual freezing of assets under the first pillar. Otherwise, they remain unchallengeable official accusations infringing the individual’s right of access to justice (Article 6 ECHR) and her right to reputation (recognised under Article 8 ECHR), not to mention the potentially disastrous economic consequences.

Can Tort Reform and Federalism Coexist?

Critics of federal tort reform have usually come from the political left and its allies among the trial lawyers, who favor a state-based system that can be exploited to redistribute income from deep-pocketed corporations to deserving individuals. We offer a totally different criticism - constitutional in origin - that embraces the need for reform but reaffirms this principle: The existence of a problem, however serious, does not justify federal remedies outside the scope of Congress's enumerated powers. We begin with the Commerce Clause but find that interstate trade does not, by itself, justify federalizing tort law. On the basis of examples involving fast food, guns, and medical malpractice, we argue that substantive federal reforms are neither necessary nor proper. If states persist in imposing unjust rules on out-of-state defendants, federal procedural remedies are available. Next, we consider the Due Process Clause of the Fourteenth Amendment and dissect the Supreme Court's recent State Farm decision covering punitive damages. We also discuss the controversies over judicial activism and substantive due process. Despite the limitations of substantive due process, we conclude that the Court was correct to rein in punitive awards. Most important, we recommend reforms that are compatible with the tenets of federalism. Some reforms can be implemented at the state level - including solutions to excessive punitive awards, curbs on joint and several liability, payment of attorneys' fees when government is the losing party in a civil lawsuit, the prohibition of contingency fee contracts between government and private lawyers, and restraints on litigation by government to recover expenditures made on behalf of private parties. At the federal level, we endorse two procedural reforms. The first involves state long-arm jurisdiction, which determines whether an out-of-state entity can be sued in a local court. Currently, out-of-state businesses find it exceedingly difficult to avoid oppressive state tort laws. A second federal reform concerns choice-of-law rules that determine which state's laws control a multistate suit. A federal choice-of-law rule would prevent states from exporting discriminatory tort regimes. Taken together, state substantive reforms and federal procedural reforms can curtail abuses while respecting time-honored notions of dual-sovereignty federalism.

Experience, change and vulnerability: consumer education for older people revisited

AbstractEveryday consumer transactions have the same potential for unexpected consequence whatever the age of the consumers involved. Young and old alike can find that products and services fail to live up to performance claims and that they are left with problems not easily resolved, or costs that are difficult to recover. While not overlooking consumer heterogeneity – especially on the basis of age – older consumers are arguably distinguishable in terms of the social and financial context in which they make decisions and attempt to redress problems. In 1988, attention was drawn to the need for consumer education to look beyond generic objectives to the specific situation of older people and their transactions. More than a decade later, in an allegedly consumer‐oriented society, the issue is revisited here to assess the argument's current relevance. Despite the increased availability of information for decisions and consumer protection, difficulties persist in the way information is presented or accessed. Chameleon‐like, old problems become manifest in new unfamiliar ways and invalidate experience. Consumer education today is as important as it was in 1988. Arguably, technological change means that the need for a better understanding of dangers, rights and redress procedures is greater than ever and the needs of older people in increasingly complex private and public sector transaction environments are all the more pressing. However, a fundamental revision of the way we approach the design of products, services and environments is needed to improve prospects for older consumers.

Rationing Problems and the Aims of Ethical Theory

reasoned assessment of the fairness of a process for rationing healthcare that does not incorporate a substantive preference about the scope of healthcare? Is that any more likely than a reasoned assessment of the fairness of a process for determining how to count votes that does not incorporate a substantive preference about which votes get counted? If Daniels believes it is, he must make that case. To raise this concern is not to refute Daniels’s advocacy of procedural fairness as the best available approach. It does, however, call on him to revisit the potential interaction between his initial construal of what healthcare is and his later call for procedural remedies and to consider more skeptically the prospects for characterizing procedural fairness in a substantively neutral way. One anal point: Daniels, surprisingly, writes of a “surprising convergence between what is needed for our social and political well-being and for our mental and physical health.” He does not say to whom that convergence is surprising. Given that emotional distress is now generally understood to have consequences for health, it should be no surprise to anyone that injustice is unhealthy, and that such a convergence is precisely what one would expect. Reoect on the reaction of young children, even as young as three or four, to physical injury and to perceived injustice. The wailing prompted by the latter abates when the pain subsides; the wailing prompted by the former abates only when the injustice is addressed. (The empirical foundation of this insight was reafarmed here last week with the vigorous assistance of three young grandchildren.)

Legal perspectives on digital money in Europe

Highlights the key features and differences between cash and electronic money and the benefits the former cannot deliver. However, consumer confidence is seen as the vital factor in acceptance of the latter. Summarises the four main areas identified by the European Commission in 1997 where public bodies can boost confidence. Ensuring stability and soundness of issuers of electronic money by defining an appropriate supervisory framework is seen as vital, as is the provision of guidance for issuers and users on liability and redress procedures. Clarification of EC competition rules is necessary to achieve an appropriate balance between interoperability and competition in these markets. Security also needs to be improved to tackle the risks of fraud, counterfeit, tax avoidance and money laundering. Reviews EU recommendations designed to cope with future development of card payment systems.

Conditionality or contract: perspectives on partnership for development

The recent UK White Paper makes an admirable commitment to the idea of ‘partnership’, as the keystone of a new aid relationship with countries committed to poverty reduction and good governance. The concept is a difficult one, however, open to multiple interpretation. Genuine participation means joint ownership, with mutual rights and obligations; and it implies a contractual relationship, with procedures for redress in case of default. Other donors, notably the EU, have travelled this road with mixed success and much back-sliding. Can DFID learn from their experience? Can it devise its own institutional innovations to build true partnership? © 1998 John Wiley & Sons, Ltd.

Conditionality or contract: perspectives on partnership for development

The recent UK White Paper makes an admirable commitment to the idea of ‘partnership’, as the keystone of a new aid relationship with countries committed to poverty reduction and good governance. The concept is a difficult one, however, open to multiple interpretation. Genuine participation means joint ownership, with mutual rights and obligations; and it implies a contractual relationship, with procedures for redress in case of default. Other donors, notably the EU, have travelled this road with mixed success and much back-sliding. Can DFID learn from their experience? Can it devise its own institutional innovations to build true partnership? © 1998 John Wiley & Sons, Ltd.

Habitat–abundance relationships of the earthworm Eisenia rosea (Savigny) (Lumbricidae), using principal component regression analysis

Principal component regression analysis was used to investigate the relationships between the abundance of the earthworm Eisenia rosea and soil characteristics at two Ontario locations. To this end we summarized our environmental data matrix with principal component analysis and then used the first several principal components in a multiple regression analysis. This two-step procedure remedies problems associated with multicollinearity among our environmental variables. At one location, moisture was the main factor correlating with the abundance of E. rosea. At the other location, because high soil bulk density can compensate for low moisture, E. rosea abundance did not correlate with moisture.