Collective Redress and Private International Law in the EU

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1 Collective Redress and Private International Law in the EU

2 Thijs Bosters Collective Redress and Private International Law in the EU 123

3 Thijs Bosters Supreme Court of the Netherlands The Hague The Netherlands ISBN ISBN (ebook) DOI / Library of Congress Control Number: Published by T.M.C. ASSER PRESS, The Hague, The Netherlands Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg T.M.C. ASSER PRESS and the author 2017 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Printed on acid-free paper This T.M.C. ASSER PRESS imprint is published by Springer Nature The registered company is Springer-Verlag GmbH Germany The registered company address is: Heidelberger Platz 3, Berlin, Germany

4 Issues regarding jurisdiction and the recognition and enforcement of judgments in cross-border mass disputes relating to financial services M.W.F. Bosters

5 This book is made possible by: Stichting ter bevordering van internationaal privaatrechtelijk onderzoek

6 Contents 1 Introduction Collective Redress and Cross-Border Mass Disputes Parameters of This Book Book Structure Typologies/Classifications of Collective Redress Mechanisms in the EU Public Law Mechanisms and Private Law Mechanisms Aggregate Litigation and Representative Litigation Goals of Collective Redress Mechanisms Introduction Efficient Legal Protection Effective Legal Protection Reduction of the Administrative Burden on the Judiciary Goals of the Brussels Regulation Introduction Free Movement of Judgments Rights of the Defence Legal Certainty Resolving a Dispute Before an Appropriate Court References Part I Collective Redress Mechanisms in the EU 2 German KapMuG Procedure Introduction Deutsche Telekom and KapMuG History How a KapMuG Procedure Is Initiated What Plaintiffs Can Achieve Through a KapMuG Procedure ix

7 x Contents 2.5 Recent Experience with the Act, and Future Developments References Dutch Collective Action Introduction History of Collective Action Parties That Can Bring a Collective Action? Criteria for Bringing a Collective Action The Result of Bringing a Collective Action Recent Experience with Collective Actions Future Developments References Dutch WCAM Procedure Collective Settlement History The Conditions for Arranging a WCAM Settlement What Can Eventually Be Achieved with a WCAM Settlement WCAM Case Law Dexia Case Vedior Case Shell Case Converium Case Current and Future Developments Amendments to the WCAM Preliminary Questions Supreme Court References Part II Jurisdiction in Cross-Border Mass Disputes 5 Jurisdiction and the KapMuG Introduction Submission Jurisdiction in Consumer-Related Matters Application of Chapter II, Section 4 Brussels I-Bis Jurisdiction in KapMuG Procedure Relating to Financial Products Choice of Forum Agreement Choice of Forum Agreement in Consumer-Related Matters Choice of Forum Agreement in Non-Consumer-Related Matters Conclusion General Provision... 83

8 Contents xi 5.6 Jurisdiction in Contractual Matters Various Places of Performance Jurisdiction in Tortious Matters Place Where the Harmful Event Occurred or May Occur Effect of Grounds of Jurisdiction on the Goals of Collective Redress Effective Legal Protection Efficient Legal Protection Administrative Burden of the Judiciary References Jurisdiction and the Dutch Collective Action Introduction Submission Rule Jurisdiction in Consumer-Related Matters Choice of Forum Agreement Mass Dispute Relating to a Financial Product Securities Mass Dispute General Provision Jurisdiction in Contractual Matters Jurisdiction in Tortious Matters Effect of Grounds of Jurisdiction on the Goals of Collective Redress Effective Legal Protection Efficient Legal Protection Administrative Burden of the Judiciary Conclusions References Jurisdiction and the WCAM Introduction Procedural Role of Parties and Applicability of the Brussels Regulation Submission Rule Jurisdiction in Consumer-Related Matters Choice of Forum Agreement Choice of Forum Agreement Between the Victims and the Perpetrator Choice of Forum Agreement as Part of the Settlement Agreement General Provision and Co-Defendants Co-Defendants Pursuant to Article 8(1) Brussels I-Bis

9 xii Contents 7.7 Jurisdiction in Contractual Matters Jurisdiction in Tortious Matters Effect of Ground of Jurisdiction on the Goals of Collective Redress Effective Legal Protection and Finality Efficient Legal Protection Administrative Burden of the Judiciary Conclusion References Parallel Proceedings Introduction Lis Pendens Requirements Application of Lis Pendens Rule to Collective Redress Mechanisms Related Actions Requirements Application of Related Actions Rule to Collective Redress Mechanisms Conclusions Parallel Proceedings and Collective Redress Goals References Part III Recognition and Enforcement of Foreign Collective Redress Judgments 9 Goals of the Brussels Regulation Regarding Jurisdiction Interim Conclusions Regarding Jurisdiction Goals of the Brussels Regulation Legal Certainty Most Appropriate Court Preliminary Conclusions Reference Recognition and Enforcement of KapMuG Judgments Introduction Judgment or Court Settlement? Non-Recognition and Non-Enforcement of a KapMuG Judgment Public Policy Defaulting Defendant Irreconcilable Judgment

10 Contents xiii Conflict with a Judgment Given in Another Member State Summary Goals of Collective Redress References Recognition and Enforcement in Relation to a Collective Action Procedure Introduction Cross-Border Effect on Third Parties Enforcement in a Collective Action Procedure Non-Recognition and Non-Enforcement in a Collective Action Procedure Defaulting Defendant Public Policy Irreconcilable Judgment Conflict with Judgment Given in Another Member State Summary Goals of Collective Redress References Recognition and Enforcement of a WCAM Judgment Introduction Judgment or Court Settlement Enforcement of a WCAM Judgment Non-Recognition and Non-Enforcement of a WCAM Judgment Defaulting Defendant Public Policy Irreconcilable Judgment Conflict with Judgment Given in Another Member State Summary Goals of Collective Redress References Goals of the Brussels Regulation Regarding Recognition and Enforcement Interim Conclusions Regarding Recognition and Enforcement Goals of the Brussels Regulation

11 xiv Contents Part IV Making Cross-Border Collective Redress Possible 14 Summary Typologies of Collective Redress Mechanisms Application of the Rules on Jurisdiction KapMuG Procedure Dutch Collective Action WCAM Procedure Lis Pendens Rule Application of the Rules of Recognition and Enforcement of Foreign Judgments KapMuG Procedure Collective Action WCAM Procedure Principles of Collective Redress and the Brussels Regulation Principles of Collective Redress Goals of the Brussels Regulation Applicability of Brussels Regulation and Recommendations Reference Relevant Developments and Possible Future Research Introduction Consultation Towards a Coherent Approach to Collective Redress Recommendation Towards a European Horizontal Framework for Collective Redress IBA Guidelines Insolvency Regulation Alternative Solutions and Possible Future Research References Bibliography Case Law Curriculum Vitae Index

12 Glossary/Abbreviations ADR Collective redress mechanism DCC DCCP ECJ HR KapMuG Mass dispute NIPR PIL Plaintiff Interest group Standard redress mechanisms WCAM Alternative dispute resolution Procedural mechanism through which a mass dispute can be resolved Dutch Civil Code (or Burgerlijk Wetboek (BW)) Dutch Code of Civil Procedures (or Wetboek van Burgerlijke Rechtsvordering (RV)) European Court of Justice or Court of Justice of the EU Dutch Supreme Court (Hoge Raad) German Capital Market Model Case Act (Kapitalanleger Musterverfahrensgesetz) Disputes involving numerous claimants by means of a single action or procedure Journal of Dutch Private International Law (Nederlands Internationaal Privaatrecht) Private international law A victim that has started a collective procedure to resolve a mass dispute Entity promoting the interests of the various individual claimants/victims in a mass dispute (e.g. the foundation or association that represents the interests of a group of victims in both the collective action procedure and the WCAM procedure) Redress mechanisms used in disputes between two parties Collective Settlement Act (Wet collectieve afwikkeling massaschade) xv

The Participation of the EU in International Dispute Settlement

Luca Pantaleo The Participation of the EU in International Dispute Settlement Lessons from EU Investment Agreements 123 Luca Pantaleo BRV [Public Management, Law & Safety] The Hague University of Applied