Concept paper:
Collective Actions: Enhancing Access to Justice and Reconciling Multilayer Interests?
Disputes involving a large number of potential claimants have long presented difficulties to legal systems designed to accommodate disputes between a small number of parties. Deterred by various factors, such as the costs of potential court proceedings and the imbalance of power between parties, private actors often abstain from pursuing their rights. Potential defendants who have caused significant but dispersed harm may thus escape from “punishment”. In sum, multiple layers of interests, or “multilayer interests”, ranging from the interests of private actors in protecting their rights on the one hand to the interests of society as a whole in deterring socially detrimental behavior on the other may be left unsatisfied.
To remedy this problem, various forms of collective actions have been developed. They range from group actions, in which individual actions are grouped into one procedure, to representative actions, in which an association sues on behalf of a multitude of claimants, to test cases procedures, in which claimants sue in order to set a precedent for others. These various forms of collective actions aim to facilitate “access to Justice” for private actors, i.e. the ability to enforce and protect one’s rights through a legal process. In addition to bundling a larger number of fragmented individual interests, they are also seen as a mechanism to safeguard common interests of specific groups of claimants and of society as a whole. Collective actions are not just a procedural tool; they also raise political, social and economic issues, e.g. the balancing of interests between weaker private actors and bigger players, the coordination of collective actions with enforcement efforts by public agencies, cost issues and a possible subordination of the individual for the sake of larger or collective interests. There is intense debate among scholars and practitioners about whether collective actions can adequately safeguard and reconcile access to justice with multilayer interests.
The purpose of this conference is to explore the role of collective actions in the enforcement of laws in a variety of fields, analyzing their suitability by considering whether and how they can ensure “access to justice” for private claimants and reconcile the various other interests at stake. These areas include competition law, an area in which the EU and Japan are considering some form of collective action, corporate and securities law, where different mechanisms such as derivative actions (under corporate law) and class actions (in securities law) are used in many jurisdictions, and consumer protection, environmental and health law, where debates rage over the appropriate mechanism to protect the rights of affected individuals.
The conference will inter alia address the following questions in this debate:
1. Are collective actions a viable solution to deal with individual interests? Do they sacrifice individual rights for the sake of protecting common interests?
2. Do collective actions better balance “access to justice” with multilayer interests than enforcement by public agencies? Which form of collective action is most appropriate to achieve this goal?
3. What are the boundaries of the collective actions in the selected legal fields?
The overall aim of the conference is to bring together legal scholars from around the world to share their expertise and explore the role of collective actions in balancing multilayer interests with access to justice. Past Kyushu law conferences have yielded lively discussions that benefited all participants and the organizers hope that this year’s conference will continue that tradition.
