In recent years, the issue of mass tort litigation and the fair and efficient settlement and adjudication of mass torts has drawn increasing attention in academic discourse, legal practice and policy debates. Indeed, academics, practitioners, courts, legislatures and policymakers throughout Europe have been struggling with the ‘massification’ of private law relationships, both in and outside of tort law.
A recently published book titled “Mass Torts in Europe“, co-edited by Gerhard Wagner and myself, is devoted to European perspectives on mass tort litigation. With this blog entry, I summarize the introductory chapter to the book.
Undoubtedly, the quantity and quality of the extant literature on mass litigation and class actions is overwhelming. Within the European legal debate, however, the emphasis seems to be mostly on ‘massification’ in competition, consumer and securities law. Our book adds to the existing literature by collecting a number of case studies mostly on tort cases and, by combining these with thematic chapters in which the challenges concerning mass torts are mapped, explored and analysed from a European perspective. By implication, this book thus combines substantive law and procedural law aspects on the one hand, and issues concerning the practical operation of law and related mechanisms of behaviour modification and dispute settlement on the other. As a result, this book does not only involve reference to ‘the law in the books’ but extends well into the domain of ‘the law in action’.
The set-up of the book is briefly as follows. The introductory chapter sketches the contours of the issues of mass torts and related problems of substantive and procedural law. Then, the book follows two main threads: insights from practitioners and academic reflections.
Insights from Practitioners
In the first section, case reports written by expert practitioners give an insight into the practical operation of the law in various cases of mass tort. These chapters cut through jurisdictions and vary from mass breast implant scandals to large-scale financial fraud. Although other orders would have been perfectly tenable, we have decided to arrange the case studies in the following order. First, under the heading of ‘several events with common causes’, there are two case studies on defective products and business processes endangered life and health: asbestos and silicone breast implants. Secondly, under the heading ‘one event with multiple victims’ we deal with two salient disasters that caused widespread death and injury: the grounding, tilting and capsizing of the Costa Concordia (2012, Italy) and the derailment and collision of a high-speed train at Eschede (1998, Germany). Thirdly, the theme of ‘multinationals and multi-district actions’ deals with the accountability in tort of multinational corporations for mass damage caused elsewhere, illustrated by the litigation of African silicosis claims against mining companies and environmental claims against Shell before UK courts. The fourth and final category of case studies involves financial markets and mass damage. One case study involves the allegedly misleading annual report of the German Telekom-case, a second one the Italian bank (over)charge class action and a final third one the claw-back actions by the trustee in the Madoff bankrupt estate.
In the second part of the book, we bring together academic reflections on wider issues of mass torts. The section covers a broad range of underlying legal and policy concerns. The chapters were written by outstanding scholars, expert in their fields, with a broad and comparative vision on the issues involved. Here, the volume focusses at a more general level on many of the problematic issues that were raised at case level in the case studies. How do fundamental principles of substantive tort and insurance law (such as joint and several liability, standards of proof of causation), as well as principles of civil procedure (such as rules of evidence, burden of proof and the right to be heard) stand up in face of the challenges posed by ‘massification’? Can civil procedure effectively deal with aggregation of claims, collective damage actions, model case and test case proceedings? What alternatives to litigation have developed in terms of dealing with mass dispute adjudication in tort law and related areas? Have alternative pathways to compensation been successful in addressing all stakeholders’ interests in a fair and balanced way? What is the role of conflict of laws in the market for dispute adjudication services within Europe? And finally, what is the relevance of insolvency proceedings in examining responsibility and fairly distributing compensation?
As can be concluded from the previous, this edited volume covers the breadth and depth of mass tort litigation, negotiation, settlement, adjudication and compensation. In doing so, it offers further guidance in a highly complicated area of the law which involves concepts and principles derived from both substantive and procedural law. The book does not offer rough and ready answers to the challenges posed by mass torts. Underlying the cases and reflections, however, is at least one issue that may merit further discussion: are we ready yet for a common pan-European approach to mass tort litigation? If European legal systems are to tackle the issue of mass tort litigation and the fair, efficient and expedient settlement and adjudication of mass torts, they need to rebalance both substantive and procedural law and principles.
- W.H. van Boom & G. Wagner (eds.), Mass Torts in Europe – Cases and Reflections. Berlin: De Gruyter 2014.