1 Notion of Collective Litigation

1. The expression ‘collective litigation’ is a very broad expression and is technically capable of encompassing all the several different tools conceived to solve typical problems of the societies shaped by the industrial revolution, the so-called mass societies. The growing access to consumer goods gave rise to the likelihood of the existence of tens, hundreds and thousands of individual lawsuits with identical subject matters or common essential characteristics.^[1]
2. It is also important to note, in order to establish a really accurate overview of the rights that can be encompassed by class actions, that the legal scenario changed considerably in the intellectual atmosphere of the Enlightenment, which inspired the eighteenth century revolutions.^[2] The so-called fundamental rights arose inspired by the philosophical ideology that gave rise to the American revolution (1776) and to the French revolution (1789). They had markedly individualistic leanings (or features) that were only minimized by the nineteenth century social movements, with the emergence of so-called second-generation rights, social rights, lato sensu.^[3] The relationship between first- and second-generation rights is complementary rather than oppositional.^[4]
3. In the second half of the twentieth century, rights that scholars called third-generation fundamental rights emerged. This third generation, rather than clashing with the first two, complements them.  These third-generation fundamental rights comprise the right to health services, to housing, to the preservation of historical and cultural heritage, to a healthy environment, etc.^[5] This third generation of fundamental rights was already the product of a ‘globalized’ view of those rights. ^[6]
4. As we know, the moment when a right is created does not always necessarily coincide with the conception of a remedy by means of which this right could be enforced. This is what occurred with these so-called fundamental or human rights: when the state ceased to be absolutist – pardon our simplification of the idea – it was recognized that the individual had rights against the state. Yet, the individual was not immediately afforded a procedural tool to claim said rights.
5. So, recapitulating: scholars, influenced by ideas and by the intellectual mood of the American and French revolutions, started delving into the rights inherent to the human condition. This was the starting point. Rights were classified by scholars as being first, second and third generation rights.
6. Awareness of the existence of these rights (ie, the three generations of fundamental rights) did not come about at the same moment in history, nor were the procedural tools required to defend said rights conceived concomitantly with their perception.^[7]
7. Certainly, class actions, mainly the North American model ones, are a powerful tool of ‘collective litigation’ used to concretize these third-generation rights and, as we know, are much more recent than representative class actions.^[8]
8. Contemporary scholars associate the emergence of class actions of the representative type with the United States’ Rule 23. Although there are some scholars who point to the remote origins of class actions in the Middle Ages,^[9] the vast majority of legal authors, when broaching the origins of class actions, begin in the United States, in 1938, when the first version of Rule 23 was approved. Rule 23 underwent several amendments over time, and its 1966 version introduced, for the first time, the current design of representative class actions. Since then, Rule 23 has undergone many changes.
9. As can be noted, representative class actions serve to protect individual rights belonging to groups, of different sizes, of people and also to protect intrinsically collective rights, such as the second and third-generation fundamental rights.
10. As we will see, other tools of collective litigation serve to resolve group disputes linked to individual rights. These are the aggregate litigation tools. Therefore, there are only a limited number of statements that could be made that would be true in relation to all of these tools.
11. In any case, we could affirm that collective litigation is not a primary construct of the theory of procedural law. The main concepts of classical procedural law were conceived circa 1850, the German legal writer Oskar von Bülow being considered one of the first legal authors to deal with procedural law in a scientific way, treating it as an independent branch of law that is not to be confused with substantive law. The concept of procedural legal relationship^[10] and of process’ Voraussetzungen (requirements) were thought up on the basis of the scheme of individual rights^[11]. Notions such as standing, interest, causae petendi, petitum were all conceived based on an individualistic approach.^[12]
12. So, naturally, the classical tools of civil procedure were, and still are, not able to solve certain types of disputes, mainly (i) those related to mass societies^[13] (ii) those related to rights that belong to everyone's intrinsic collective rights – most of them did not have their existence recognized before the second half of the twentieth century.^[14]
13. The need to find a procedural solution for these situations and for these new rights was not felt at the time when the classical civil procedure was conceived because (i) mass societies emerged in the second half of the twentieth century; (ii) several rights whose violation can justify the use of collective procedural tools were not yet recognized as rights: eg, rights against casteism^[15], racial discrimination, the jeopardizing of artistic or historical heritage. Thus, only a descriptive approach of the cultural context where collective litigation was born will enable us to better understand it.
14. Law has a very clear practical dimension, and it normally embodies answers to the problems it is meant to solve. The acknowledgement and the interpretation of the needs of a society normally give rise to the creation of legal tools to solve them: substantive law and the corresponding procedural tools. Procedural devices are, in fact, a reaction: the way a society finds to answer its needs.^[16]
15. In the last century, an increasing number of national and multinational corporations, whose success depends on their ability to market goods and services to vast populations, created the chance of mass injuries stemming from violations of law has naturally increased and class actions were seen as a possible path for a suitable solution. ^[17]
16. Class actions, a specific tool that renders concrete collective litigation, the subject of chapter 3 and 4, was a way the US found to solve these problems that, as previously mentioned, were not easily solved by traditional procedural devices.
17. It was, for example, not very difficult for the US to conceive a procedural device such as class actions because common law jurisdictions are usually less concerned with civil procedural theory, with steady concepts and categories. The pragmatic soul of English-speaking people led them to an easier path to solve practical problems, without feeling chained to old concepts.
18. This device also aimed at changing the behaviour of big enterprises. It is an expressive example of how legal rules, under certain conditions, can change culture.^[18]
19. The same problems arose in Europe and there too, as we will see, attempts were made to create more efficient procedural tools. In Europe, care was always taken not to simply copy the North American model, which was already revealing flaws, such as the fact that it was a type of litigation conducted by lawyers.^[19]
20. Despite this, the existence of this first model of collective litigation, the American class action, prompted reactions in many countries, in which there were attempts at establishing similar instruments.
21. Even if, in recent years, the U.S. Supreme Court has steadily closed the courthouse doors to class actions, an increasing number of foreign jurisdictions have adopted some form of representative group proceedings inspired by the American class action.^[20]
22. The American class action had a golden age between 1966 and 1976.^[21] The golden age began with the amendment to Rule 23 of the Federal Rules of Civil Procedure, which created mechanisms for the realization of rights.^[22] During the 1970s, the golden age came to an end, when the Supreme Court decisions restricted class actions.^[23]
23. The success story of the American class action began to change during the 1970s, when the Supreme Court handed down several restrictive decisions.^[24] The era of success of federal mass tort class litigation effectively ended by the end of the twentieth century, when federal appellate courts and the Supreme Court put the brakes on innovative class action experiments.^[25] The orientation, at that time was that settlement in class actions had to comply with the requirements of Rule 23.^[26]

In individual litigation, a court usually does not need to approve a settlement between the parties. In class actions, however, the court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defences of a certified class (Fed R Civ P 23(e)(2)). That is because settlement of class actions implicates numerous parties, including the class representatives, class counsel, absent class members, defendants, defence counsel, and possibly defendants' insurers. Although the court need not approve a pre-certification settlement of individual claims, the court can still in some instances enquire into the circumstances behind such a settlement. To approve the settlement of a certified class, the court must:

• Conduct a hearing to evaluate the terms of the settlement.
• Find the settlement to be fair, reasonable and adequate considering whether the:

• class representatives and class counsel adequately represented the class;
• proposal was negotiated at arm's length; and
• relief provided for the class is adequate, taking into account the costs, risks and delay of trial and appeal, the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims, the terms of any proposed award of attorney's fees, including timing of payment, and any agreement made between the parties in connection with the proposal.

• Determine the extent to which notice must be provided to members of the class.
• (Fed R Civ P 23(e)(2).)
• Courts commonly weigh several factors including:
• The nature of the claims and possible defences.
• Whether the proposed settlement was fairly and honestly negotiated.
• Whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt.
• Whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation.
• Whether the parties believe that the settlement is fair and reasonable.
• The defendant's financial viability.
• The number and objective merit of any objections received from the class members.
• The risks in establishing damages.
• The complexity, length, and expense of continued litigation.
• The stage of the proceedings. (Fed R Civ P 23(e)(3).)

Provisions of CAFA (28 USC §§ 1711-1715) provide procedures for greater scrutiny of class action settlements, including requiring that notice of the proposed settlement be provided to state and federal agencies depending on the type of case. However, because strong policy considerations favour settlement, courts often presume that settlements negotiated at arm's length are fair and reasonable.

The US Supreme Court recently vacated an appeals court's affirmation of a cypres only class settlement, remanding on the grounds that, before approving the settlement, federal courts must first determine whether any named claimant met the Spokeo standing factors such that the court has jurisdiction to consider it (Frank v Gaos, 139 S Ct 1041, No 17-961, 2019 WL 1264582 (Mar 20, 2019) (per curiam)). The US Court of Appeals for the Third Circuit recently followed suit in In re Google Inc. Cookie Placement Consumer Privacy Litigation, 934 F.3d 125 (3d Cir. 2019), disapproving of a settlement and remanded the action after the district court failed to sufficiently examine the relationship between the cypres settlement fund recipients and defendant.

If a defendant seeks to settle with all the putative class members before class certification, the court must still apply the factors set out in Rule 23, and certify a class for settlement purposes. The court must find that the settlement class meets all the Rule 23 requirements except manageability at trial (Amchem Products v Windsor, 521 US 591 (1997)). Determining whether to certify a settlement class is often less onerous than whether to certify a contested class, especially where all defendants favour the settlement. However, when the parties negotiate a settlement before a class has been certified, the district court must apply a heightened scrutiny for evidence of collusion or other conflicts of interest before approving the settlement as fair (Roes, 1-2 v SFBSC Management, 944 F.3d 1035 (9th Cir. 2019)).

If the court preliminarily approves the proposed class settlement, under Rule 23(e)(1), the court will then determine a schedule for notifying all absent class members who would be bound by the settlement, so that they can decide whether to:

• Opt out of the class.
• Object to the terms of the proposed settlement.

To satisfy the due process standard of Rule 23(c)(2)(B), notice to class members must be the "best notice that is practicable under the circumstances" (Roes, 1-2 v SFBSC Management, 944 F.3d 1035 (9th Cir. 2019)).

When objecting to a class settlement, class members must state whether the objection applies only to the objector, to a specific subset of the class or to the entire class. The objector must also state specifically the grounds for objection (Fed R Civ P 23(e)(5)). Where there is more than one defendant, individual defendants can, and often do, settle separately and at different points in the litigation. The effect is that the settling defendant is out of the litigation and the remaining defendants may be jointly and severally liable for the claimant's full damages, including that proportion caused by the settling defendant. However, usually any judgment against the remaining defendants will be reduced by the amount of the prior settlements.

Similarly, before certification, one or more defendants can seek to settle with some but not all the named claimants, sometimes in an attempt to undermine the putative class. This raises the question of whether a pre-certification settlement offer to pay a claimant's full claim of damages moots (voids) that claimant's case, on the basis that a claimant no longer has constitutional standing to pursue its case if it has received an offer to pay its alleged damages in full. However, in Campbell-Ewald Co v Gomez, 136 S Ct 663 (2016), the US Supreme Court held that, in accord with Fed R Civ P Rule 68, an unaccepted settlement offer has no force and creates no lasting right or obligation.^[27]

24. An example is appropriate here: in the Amchem Prods., Inc. v. Windsor case, thousands of North American industrial workers had sustained (first in individual claims in 1960, and then in a class action) personal injury caused by asbestos, and for which many companies were held liable. Asbestos is a highly carcinogenic mineral.^[28]

25. The American courts came up with alternatives to solve the problems arising from the huge number of lawsuits filed on a daily basis. In the end, they decided to amend Rule 23 USFRCP in order to allow class actions for damages, which did not previously exist.
26. Prior to this event, there were only actions for declaratory judgments, but none for the award of monetary damages. This amendment also established the opt-out system Rule 23 (b) (3) USFRCP.^[29] 
27. Another possible course of action considered for this specific case were actions for collective settlements, which are lawsuits whose aim is to obtain the ratification of a class action settlement, and which would be particularly useful in the case of damages arising from mass injuries.
28. In addition, multidistrict litigation (MDL) and bellwether trial were also established. Lawsuits were consolidated and negotiations were initiated aiming to reach a settlement that had the power to resolve all the lawsuits, defining the liability of the defendants all at once.^[30] 
29. However, the situation of the defendants was profoundly different, both in respect of the initiative of having sought the courts – many had filed lawsuits and others not – and in respect of the injury to their health, which ranged from various types of cancer to non-malignant conditions. Nonetheless, there was an undesirable outcome, ie, the conflict of interests among the petitioners themselves, who belonged to various groups.^[31]
30. In the Supreme Court, it was acknowledged that the group was divided into subgroups with several different characteristics,^[32] which meant that they did not fulfil the requirement of the predominance of the common question (of law or fact), with regard to the assessment of the damages.
31. The Supreme Court’s ruling led to the settlement being set aside. It was held that this decision would send a message to the world to the effect that the state is not allowed to engage in judicial politics thereby undermining individual rights.^[33]
32. After this landmark decision, procedural tools of aggregate litigation started being created around the world, as will be seen in chapter 4.
33. Aggregate litigation tools are also an efficient procedural tool to solve disputes arising from the actions of large national or multinational corporations that caused mass injuries stemming from violations of the law. Instruments of aggregate litigation may be very different from one another, but they are all different from the representative class actions, because (i) they require a certain number of individual actions to have been filed (ii) there is no ‘representative plaintiff’.^[34] 
34. Class actions have been seen throughout the world as a controversial procedural tool^[35] which may represent a menace.^[36] Those tools which deal with fundamental rights can be seen as a threat to governments.^[37] Similarly, those which render it possible for a large group of people to litigate against companies,^[38] when these claims were individually unfeasible because of their low value, may represent a threat to these companies.
35. Here, it is already perceptible that one has to make a distinction between two types of class actions: (i) those that deal with rights belonging to everyone, which are intrinsically collective, such as the right to breathe clean air, and (ii) those belonging to a large group of people, identical, individual, normally arising from contracts, yet affecting a large number of individuals. This will be elaborated on further ahead. In both cases, class actions may play the role of a powerful tool to correct bad conduct of the government or of companies: clearly, one of its main goals is really to change behaviours.
36. In Brazil, for instance, companies feel and are threatened. The same can be said of the Government which is why it has already created rules to forbid class actions related to tax matters.^[39]
37. Concern was manifested, for instance, in France before 2014, when group actions became a reality, with Act no. 2013-34L, March 2014 (Loi Hamon). However, it is currently recognized that collective litigation did not really jeopardize the French economy. As Alexandre Biard states, ‘many fears expressed before 2014 have not materialized in practice’.^[40] For several reasons, group actions are still rare in France. Associations have a monopoly on standing and only 15 associations in the whole country meet the special requirements to have this standing. Out of 15, only five consumer organizations have initiated group actions.^[41]
38. The need for collective litigation is not deeply felt by the population of countries of German culture, ie, Germany, Austria and Switzerland.^[42] One of the reasons why it happens is that many questions are previously solved on an administrative level, by government oversight agencies.
39. In general, the classic representative model of class actions was not easily adopted in Europe, for different reasons, one of them being the resistance to departing from models and concepts of traditional civil procedure of Continental law.^[43] 
40. The European Law Institute and the International Institute for the Unification of Private Law (ELI and UNIDROIT) are working on a project on ‘Principles of European Civil Procedure’ that deals widely with collective litigation. At the beginning, it was inextricably linked to the traditional concepts of civil procedure, being very cautions not to open doors to abuse. Nevertheless, in the last version of this project a tendency to depart from decades of a hostile attitude towards collective litigation can already be noticed.^[44]
41. As previously mentioned, the two tools that render possible collective litigation at the disposal of contemporary societies are analyzed more deeply under (c) are: (i) representative class actions (to be dealt with in chapter 2) and (ii) aggregate litigation (to be dealt with in chapter 4).
42. An analysis of the types of class actions that exist throughout the world leads us to believe that they could be subdivided into two types:  those actions whose goal is to get a court ruling to protect the rights that belong to everyone (ie, collective rights in their essence), including, but not exclusively, fundamental rights,^[45] and those actions that aim to protect people against the violation of individual rights, with common characteristics (actions which could, in fact, be individually filed).^[46] 
43. Disputes that can be solved by this second kind of class action, which aims to obtain a single decision in identical disputes involving a considerable number of persons, could normally also be solved by means of aggregate litigation (see, in this chapter, item c and chapter 4).
44. In the two kinds of class actions, there had to be a detachment from traditional concepts and structures of individual/classical civil procedural law. Moreover, this is certainly a common characteristic of the origin of all collective litigation tools. Both types of class action arise from a special concern with equality and with a good performance of the Judiciary also, because the use of class actions leads to the observance of equality, promotes the credibility of the judiciary, and certainly generates greater efficiency.
45. In India, for example, there are class actions which, to some extent, follow the American class actions model. They are permitted under several statutes, eg, consumer law, competition law and company law. According to the differentiation made above, these claims belong to the second style of class actions.
46. Nevertheless, the writ petition, which can have the nature of a representative action and is called Public Interest Litigation (PIL), is extensively used.^[47] In India, PIL is considered essential to maintain democracy and to meet the needs of citizens, leading to the protection of fundamental rights. Injunctive relief to prevent the infringement of fundamental rights, as well as compensation, can be granted by courts.
47. The Indian Constitution guarantees the protection of fundamental rights and provides for ‘Directive Principles of State Policy’. These directives play a major role in the context of Public Interest Litigation. In fact, it is not typical adversary litigation but an opportunity for the government to assure social, economic, and political justice to the deprived and vulnerable sections of society, giving a practical meaning to the Constitution. So, this kind of class action is typical of the first kind, as per the abovementioned classification.
48. Currently, ‘many legal systems are still searching for viable and efficient schemes of group litigation so as to strike a balance between a few peculiar features of the procedural law in force and the imperative of devising an action flexible enough to accommodate new situations, requiring novel forms of access to justice’. This is the case of Italy and the Russian Federation.^[48]
49. The Italian experience with collective actions, which has lasted almost two decades, cannot be considered a success. Collective actions for compensatory relief have existed since 2010 and, at the beginning, were considered a revolutionary step. Nevertheless, there were just a few positive results. Not only the choice of an opt-in system, but also the unreasonable length of judicial proceedings in Italy were probably among the several reasons for this disappointment.
50. In Italy, as from the 2019 law reform of collective actions, they became available to ‘all those who are interested’, to holders of ‘homogeneous individual rights’: that means that not only consumers and users are entitled to use these tools against, for instance, business entities and providers of public services for any possible kind of unlawful activity.
51. Already in the 1990s, certain laws provided for the right of a number of persons to bring a court action for the protection of the public at large. But no special procedure was provided for in the procedural codes with regard to cases of this kind.
52. In the Russian Federation, it is considered that, back in 2009, the first procedure for class actions was introduced, limited to the Arbitrazh Courts (Courts that are in charge of commercial disputes). Some reforms took place starting in October/2019, such as not limiting class actions to specific matters: private interest of multiple persons and public interests can be the object of these suits. As will be seen in Chapter 2, c.
53. The Russian Federation’s system is still under construction and the hope is the Courts will act creatively when applying provisions related to class actions, to develop law according to the fundamental right of access to justice, granted by the country’s Constitution.^[49]
54. In Argentina, the main problem regarding conflicts that involve large groups of people is the absence of a comprehensive procedural tool or mechanism in the federal system. The lack of such proceedings on the federal level is a problem mainly because of the 1994 constitutional reform that recognizes certain collective subjective rights (rights of collective incidence) and also standing to sue for certain social actors to promote actions in the defence of such rights.^[50]
55. As mentioned in paragraphs 27 to 37, given that class actions have gone through a phase of little prestige in the US, and as there is a certain prejudice against them in Europe, the adoption of aggregate litigation techniques has been increasingly frequent around the world.
56. These range from the ‘joinder’ of lawsuits from the start, to a form of joining cases dealing with the same issues at the appeal stage, such as ruling by sampling. There are also cases in which the Court opts for a legal theory, in abstracto, to be applied to all pending cases.  
57. The techniques utilized to solve problems related to rights held by a large group of people are profoundly different: as previously mentioned, there is not only one kind of class action and there are also several methods to aggregate proceedings that had already been filed, so that they can be solved in the same way.
58. Although class actions and aggregate litigation really can be considered efficient tools to render viable access to justice and, in some cases, to grant human dignity, there is also another way to see collective litigation. It can also be viewed as a nuisance for parties and courts. So, what would be really desirable, according to this point of view, is to prevent this kind of litigation and to encourage parties to settle. Settlements are particularly important to those cases which could give rise to mass claims.
59. While their practice is already usual in common law jurisdictions, in Continental Europe it is still a dream.^[51]

2 Values Underpinning Collective Litigation

2.1 Technical Advantages / Social Needs

60. This subject has to be dealt with from two points of view: legal values, ie, technical advantages, that can be achieved by this kind of procedural tool; and social values that may be reached.
61. Collective litigation is a generic concept and encompasses several unique tools, as previously said. However, all these tools have the common aim of solving, if not at once, in a more efficient way, a dispute which concerns a vast group of people instead of solving each dispute individually.  
62. Class actions may have as a result: declaratory relief, injunctive measures or compensation. The interests of those who have been affected by unlawful conduct are protected in a more effective way if the legal system also provides compensation.^[52]
63. Another important feature that can differ from country to country is the areas of law where class actions exist. They can encompass all branches of law or only a few of them.
64. The same can be said of aggregate litigation.
65. In any case, collective litigation favours procedural economy: less effort and more results. Techniques may vary from country to country^[53], but the problem (the disruption) is solved at once and the decision produces its effects towards a large group of people: normally everyone involved.
66. Equality may also be attained by collective litigation, for it renders possible the provision of equal solutions to identical or similar cases. The risk of providing different solutions is practically entirely avoided. That also means legal certainty.
67. Technical efficiency is also achieved through collective litigation techniques.
68. As a result of efficiency, the performance of the Judicial branch can be improved.
69. Social values are also inextricably linked to collective litigation, these being: (i) effective access to justice; (ii) efficacy; and (iii) ethical values, embodied in the will to alter the behaviour of the defendants and build a more ethical society.
70. Access to justice may refer to two different circumstances. It means that new rights such as those against discrimination, pollution, preservation of historical and artistic heritage can be heard by the courts. Therefore, in this case, citizenship and human dignity are prioritized.
71. It may also mean access to justice in the sense that claims and applications that have no significant monetary value, commonly referred to as economically non-viable claims, are rendered viable.
72. These goals correspond to the two previously mentioned kinds of class actions. Collective litigation (linked to the first kind of class actions) is that related to human rights, their conquest or maintenance. It has been seen and used as a means to render concrete ideas of citizenship, equality, specifically, but not only, the absence of any kind of discrimination, the right to housing, to daycare for the children of working parents, and the free distribution of medications by the health authorities.
73. The second kind of class actions is more intimately linked to values such as efficiency, avoidance of contradiction, and coherence of decisions, as well as the viability of claims which would not be individually filed because of their low value.
74. The same can be said of aggregate litigation, that is, the values underpinning both kinds of collective litigation devices are approximately the same.

2.2 Shift from the Classic Individual Model of Litigation to a Collective One

75. Civil procedure was conceived as being an essentially private phenomenon. The dominant values of classical civil procedure were the autonomy and the freedom of the parties to the proceedings. Obviously, it is not an ideologically neutral conception, on the contrary, it is the projection of a political ideology largely predominant throughout the nineteenth century.^[54]
76. The main concern of thinkers of the period was to depict man as an individual and a rational being. On that note, it was only very recently in history that ecology began to be seen as a problem of the community.^[55] In fact, rational ideology had as one of its consequences the separation between man and nature.^[56]
77. The classical individual concepts and institutions of traditional civil procedure were conceived in the light of philosophical concerns that have changed considerably throughout the last two centuries.
78. What rendered this shift a more complex transition was that these traditional concepts were conceived as if they were dogmas ie, as if they were something that cannot be questioned or on which doubts should be cast. Savigny, for example, used to compare law with mathematics, more specifically with geometry.^[57]
79. So, procedural categories were conceived as if they were eternal, as if they were something natural. Law was seen as a conceptual branch of knowledge, unrelated to history, culture. Presumably, legal concepts could serve any human society, at any time, independently of its cultural characteristics and needs.
80. The dogmatic thought considers natural that legal concepts and structures of civil procedure conceived for the European society of the XIX century could be useful for the post-industrial society of the twenty-first century.^[58]
81. This is one of the reasons why the way to create collective techniques to solve disputes was not easy. Collective litigation implies a need for shifting from the classic individual concepts, related to the individual model of litigation, Caius v. Ticius, in the name of access to justice and of efficiency.^[59] 
82. Everything that was mentioned in item 1 of this ‘introductory chapter’ (Notion of collective litigation) already clearly shows that many concepts of classical civil procedure will have to be ignored or at least adapted to the type of efficacy one aims to derive from using a collective litigation tool, but mainly if dealing with ‘representative class actions’.^[60]
83. Actio (action), legitimatio (standing), res judicata and enforcement are the four concepts that have to be dealt with in a different way to construct collective tools to solve disputes: class actions and techniques of aggregate litigation.^[61]
84. When it comes to class actions, standing and res judicata had to be redesigned to fit a model whose impact extends beyond the sphere of the claimant. In fact, as we said before, one of the aims of collective litigation is the changing of the defendant’s behaviour.
85. Classical civil procedure establishes a close relationship between substantive and procedural law to generate standing, in the civil law world. An example can make it clearer: if A and B were parties to a contract it is permitted that only these parties A and B can be claimant and defendant in proceedings where the validity of this contract is at stake (the meritum causae).
86. Even in the common law tradition, where these concepts are not so precisely formulated and where the notion of standing sometimes overlaps the idea of interest in the claim (interesse ad agire), it has been noticed by legal writers that rules of standing have been developed within a private law paradigm, ie, in the context of private litigation.
87. Class actions, on the other hand, necessarily imply a different approach to standing.^[62]
88. This concept of standing had to be drastically changed: in this context, we have just one claimant and a whole group of people who are pointed out as being the victims of unlawful behaviour. This claimant can be an official authority (eg, the Attorney General) or semi-official authority (eg, a trade union) that represents the persons who suffered the injury. This could be called extraordinary standing.
89. Litigation, according to the classical civil procedural rules, will not ordinarily affect people who are not parties to the proceedings.
90. In any case, and this is another important classical concept that had to be remodelled to adequately fit collective litigation, the res judicata effects of the decision affect a whole group of people or a community.
91. This new conception raises some intricate problems that are not always easily solved, such as a certain deficit of right to be heard, because people who are going to be affected by the decision very often have no opportunity to interfere in its outcome. Nevertheless, they may normally be affected.
92. In some jurisdictions, statutes solve this problem by creating the res judicata in utilibus, or secundum eventus litis. This regime means that if a class action is denied, the same pleading can be submitted again and those who did not take part in the proceedings are not affected by the denial of the claim/judgment for the defendant.^[63]
93. This theoretical shift from a traditional approach to civil procedure to a different one, which is able to give answers to the new needs of current societies, raised many doubts, on constitutional grounds, and caused a number of concerns.
94. Most of said concerns stem from the fact that standing had to be given to associations, sometimes in opt-out systems, which implies that the situation of individuals whose will was not manifested and who were maybe not even informed about the suit, may be affected by a judge’s final decision.
95. Perhaps this is one of the reasons, as we said before, why in Europe there is still a great deal of resistance to adopting class actions, in the American representative model. In fact, aggregate litigation seems to depart to a lesser extent from traditional concepts and institutions of civil procedure than the American class action model.^[64]
96. In Germany, for example, Rudolf von Jhering’s famous statement about the civil trial as a ‘duel between two mature and equally skilled citizens’ is still considered valid by most commentators, practitioners, and academics. The main purpose of civil justice is the determination and enforcement of private legal rights and obligations.^[65]
97.  It is nevertheless recognized that this model does not work when it comes to plaintiffs with no resources and no incentive to litigate.
98. In cases where there are people in need and with a very low level of education, traditional rules can be seen as elitist and oppressive, and extraordinary standing can be considered the only good choice. Class actions have the potential to promote equality between small claimants and big defendants.
99. Nevertheless, this discipline is considered to depart from the Dispositionsmaxime (the principle of party disposition), in its classical version, from due process of law, and from the possibility that the parties involved may exert influence on the final decision.
100. For example, one of the most relevant principles in German civil procedure is the right to be heard. The so-called Recht auf rechtliches Gehör (right to be heard before a court) is guaranteed by the Constitution – Grundgesetz (GG) Art 103 (1) – and it is also the most frequently used grounds of appeals to the Constitutional Court. There is the corresponding duty of the judge: he or she has to take into account all the allegations and arguments brought by the parties. The right to be heard means, in fact, that parties have the right to influence the decisum.^[66]
101. This is probably one of the reasons why in Germany there are no class actions in the American style, that is, representative class actions, except in some specific areas.
102. But it is important to stress that, when it comes to collective litigation, there should not be any harm to individual autonomy. What really happens is that, in certain situations of substantive law, one can devise a great deal of objectivity concerning the right at stake. This objectivity prevents the use of personal arguments because, in this context, they are of no importance. So, as a result of this situation, a certain degree of fungibility must be seen among the members of the group. This kind of approach may help to prevent prejudice against these new techniques.
103. There have been a variety of tools of collective litigation, such as the Verbandsklage (association or interest group complaint), since 1896. They were introduced into German law by the Act against Unfair competition for associations whose purpose is to promote commercial interests. Later, it was extended to consumer associations.
104. Aggregate litigation also implies departing, to a certain extent, from traditional conceptions. There is more than one model of aggregate litigation: in any case, there must be several proceedings revolving around the same question of law or of fact.
105. The modern world has been witnessing a significant expansion of substantive law and, consequently, a considerable expansion of substantive legal obligations. Also, relationships between government and private individuals have been increasingly regulated by law.
106. Civil rights law, antitrust law, securities law, product liability law are products of these developments.
107. Aggregate litigation was the way found to solve problems related to wrongdoings that give rise to injury on a mass scale that is less distant from traditional procedural concepts. It is a way of dealing with claims that take place not as an isolated event, but as a part of a larger phenomenon that requires a unique and uniform solution.
108. The term aggregate litigation encompasses the several procedural techniques used to solve civil claims on a mass or collective basis.
109. Of course, it produces socially positive effects such as judicial economy and predictability.
110. It seems that the consolidation, established in rule 42 of the US, is a kind of aggregate litigation: when actions before the court involve a common point of law or of fact, the court may join for trial any or all matters at stake in the actions; consolidate them; issue any orders to avoid unnecessary cost or delay.
111. There are also, so called by legal writers, model proceedings (Musterverfahren, in Germany). They were created to solve a very specific problem in Germany.
112. The Musterverfahrensgesetz was initially conceived to solve the Deutsche Telekom case, the most important investor suit in German history. Between 2001 and 2003, an enormous number of investors, represented by more than 754 Attorneys, filed suits against DT, on the grounds that this Company issued wrong information in two offering prospectuses in 1999 and 2000: the value of its real property was overstated by EUR 2 million.
113. The reaction of the German legislator was to enact the Kapitalanleger-Musterverfahrensgesetz (KapMuG) (Lex Telekom). It was meant to be in effect till 2010, but its validity could be prolonged, as it in fact was. One of the possibilities is that it be incorporated to the Code of Civil Procedure, so that this model proceeding would become generally available in civil litigation.^[67]
114. Also, the English Group Litigation Order (GLO) brought about by the Civil Procedural Rules of 1999 can be considered a special technique to aggregate several actions.
115. In the UK, multiparty actions such as securities claims are generally managed through Group Litigation Orders. In these proceedings, every claimant must make their own claim, otherwise he or she will not be entitled to participate in the litigation. It is an “opt in” procedure.
116. Each claim within a GLO is an individual claim. The court manages those individual claims – the claims have common or related issues of fact or of law, referred to as the GLO issues. The GLO proceedings avoid a multiplicity of isolated claims, which creates the risk of inconsistent outcomes.
117. Normally, the GLOs are publicized so as to make it possible for other claims to be brought within the Group Litigation. The scope of the claims is crystallized once the limitations period expires: there is a cut-off date for the claims to be part of the GLO, or to proceed under the GLO – failing which, they are likely to be stayed. Judgments on the GLO issues (of fact and of law) will be binding on all other claims registered unless otherwise ordered by the court.
118. From this brief overview, it is clear that the various proceedings or methods of aggregate litigation depart more subtly from traditional rules of civil procedure.
119. This is because there must be several actions that will, in some way, be aggregated, which were previously filed, following the traditional procedural rules of standing. The moment at which there is a departure from these rules is the final decision, which will affect all of the individual situations. This can happen as an effect of res judicata, as happens with the Musterverfahren in Germany, or as a result of a binding precedent, as happens in Brazil. In any case, a common solution is given to all cases.
120. Certainly, another significant difference between traditional civil procedure and the new world of collective litigation is that the former presupposes a less active judge, not involved with managerial abilities, leaving to the parties the task of managing proceedings (as will be seen in Chapter 3, b).
121. The role of the judge in collective litigation has to be more visible and active for it to produce effective results. In fact, it is not limited to the simple scheme of applying the law to the case at hand.
122. Settlements have to be encouraged, and mediation and conciliation should be suggested.

3 Main Models

123. Collective litigation is brought to life mainly by two procedural tools: class actions and aggregate litigation.
124. Class actions are inspired by the American representative model. In the US, individual class members have standing to file a class action. The suit is filed by one or more plaintiffs, normally defending their own interests and the suit produces an award that affects the whole group of people: those who have a right or rights that have a point in common.
125. Interesting to notice that even in East Europe there are jurisdictions where it is allowed to class members to file class actions, vg, Poland, where the plaintiff files the action in the name of at least 10 people.^[68] 
126. But this is not a general rule. In France, only associations may file class actions.
127. As previously mentioned, there are two kinds of class actions, the first having the aim of protecting individual rights in a collective way, and the second having as its goal to prevent violations of rights that belong to everybody, including human rights.
128. Aggregate litigation is the model that seems to be more suited to the cultural context of civil law jurisdictions, and it is normally adopted in continental Europe. Its goal is to protect individual rights in a collective way.
129. It normally implies the joining of proceedings (ie, individual suits that have already been filed) at some point, so that a common solution can be given to all cases at least in what concerns some specific issues.
130. 2        Disputes that can be solved by models of aggregate litigation (and there are many of them) could theoretically also be solved by representative actions. Practically, the contrary is true. Not all the disputes solved by class actions can be solved by aggregate litigation, such as those that concern the protection of the environment from pollution, or historical heritage. Being these rights of the kind that belong to everybody, it is generally considered that representative class action is the best way to solve disputes that involve them.
131. Aggregate litigation normally involves the possibility that part of the question of law that constitutes all individual proceedings may be defined collectively by a judge.
132. One of the techniques of aggregate litigation employed in Europe is that of the casi pilota, Pilotverfahren or test claims. One or some of the cases are chosen and heard, and the decision is binding on the other cases (GLO 19.13(b) and UKCPR 19.15).
133. The technique has been adopted in Austria and in Brazil.^[69]
134. In Brazil, Articles 1.036-1.041 of the Civil Procedure Code establish the repetitive special appeal to the Superior Court of Justice and repetitive extraordinary appeal to the Supreme Court.
135. When it is verified that there is a reasonable quantity of pending actions based on the same facts and involving the same quaestio iuris, one or more appeals to the Supreme Court or to the Superior Court of Justice are selected and heard by the courts, and their decision is binding on all the other identical cases, past and future, involving the same question of law. This decision is considered a binding precedent.
136. There is a good example of aggregate litigation in Germany. It is the ‘Model Proceeding’, Musterverfahren (KapMuG) which applies to a very restricted area of substantive law: securities market.
137. The collective decision encompasses quaestio facti and quaestio iuris, and while it is not rendered, all individual proceedings are stayed. It is said that res judicata produced in the decision of the collective incident affects all individuals whose proceedings were stayed.

4 Other Models – Short Description: EG, Master Proceedings, Ombudsperson, Mass Joinder, etc.

138. Aggregate Litigation, mainly Model proceedings, and class actions are the most common ways to solve disputes that involve a large number of people, based on the same questions of law and of fact.
139. But there are others, such as those that involve the assignment of the claimants’ rights to a third party that files and pursues the claim on his or her own. It was tested in Germany when a Belgian corporation, specialized in the private enforcement of damage claims against antitrust violations, was pursuing the claims of 29 clients who say they experienced serious damages derived from the Cement cartel, operating in Germany between 1989 and 2002. We still do not know whether it is going to produce good results. In fact, it has not yet been demonstrated that this commercial model is consistent with German Law.^[70]
140. Although the joinder of parties could theoretically be used to solve disputes between several claimants and several defendants, it is not an efficient tool to solve mass disputes. Even if the joinder of parties allows several persons to be claimant and defendant, normally when they have a common relationship concerning the object of litigation, or rights/obligations based on the same fact/legal grounds, parties are treated individually. So, it really lacks efficiency to manage mass litigation.
141. Even if for many years collective litigation was the first, and practically the only, answer envisaged as a solution for mass conflicts, these tools are now considered old technology by some legal writers.^[71] 
142. There are other mechanisms that deliver collective redress – known as ‘new technologies’^[72], eg, ADR mechanisms (including mediation/conciliation, consumer ombudsman, Online Dispute Resolution (ODR) platforms)^[73], which will be dealt with below.
143. ‘The ADR models operate within different national architectures, that present some challenges for harmonization’, says C Hodges. ^[74] In Japan, eg, there is a combination of private and governmental ADR.^[75] ‘However, the techniques that they adopt are very similar’.^[76] The main techniques are (i) requiring direct contact between trader and consumer as a first step; (ii) mediation/conciliation; (iii) recommendation for a solution (non-binding) or a (binding) determination by the neutral party.
144. In this category of ADR, the Consumer Ombudsman is a sophisticated form of ADR. One of the main benefits of the Ombudsman is its multifunctional nature: it may handle individual or mass claims, which can be contractual or non-contractual, as well as disputes of private or public law. A major advantage of the Ombudsman system is the possibility of solving complaints, as well as monitoring the regulating the market.^[77]
145. There are Consumer Ombudsman models in some Member States, which work closely with sectoral regulators, such as Financial Ombudsmen, Energy Ombudsmen, Communications Ombudsmen etc. This integration enables much faster solutions.^[78] However, only a few jurisdictions have adopted this model.^[79] 
146. There are lots of different Consumer Ombudsman models around the world. It is important to distinguish this usage of ‘consumer ombudsman’ from that found in Nordic countries, in which the consumer ombudsman is the sole national public CLER (Consumer Law Enforcement Regulator).^[80]-^[81]-^[82] Consequently, the Nordic Consumer Ombud’s involvement in collective redress falls under the regulatory redress^[83] category.
147. While some ombudsmen operate like an arbitration model (as has been done in  Germany for insurance^[84], transport, and energy), others have evolved to operate by deploying a number of dispute resolution techniques sequentially as part of an integrated pathway: providing impartial information to consumers; evaluating cases as triage; establishing a formal complaint; assembling the facts from each side; an assisted negotiation between the parties (mediation), or a non-legally binding decision with strong persuasive effects on the trader (but not on the consumer).^[85] 
148. Often, ADR mechanisms are implemented through online dispute resolution (ODR) platforms, which are more efficient, effective, and often provide excellent user interfaces for consumers.^[86] 
149. Consumer grievances can be effectively redressed through online dispute resolution (ODR), which enhances consumer trust in the market and promotes sustainable growth of e-commerce.^[87]
150. There is a provision in the Regulation (EU) No 524/2013 which requires all online retailers and traders in the EU, Iceland, Liechtenstein or Norway to provide an easily accessible link to the ODR platform and an email address to enable the ODR platform to contact them.^[88]-^[89]
151. The growth of ODR has been lower compared to traditional ADR, resulting in a relatively low number of successful ODR providers. Business and consumer education and awareness campaign, free ODR platform coordinating ODR services are some of the strategies that can be put forward to enhance the use of ODR.^[90] 
152. In Europe, in what concerns ADR in regulatory redress^[91], the Consumer Protection Cooperation Regulation (EC No 2006/2004 or the CPC Regulation) plays a crucial role in the process. The purpose of this regulation was to establish a framework of cooperation between national authorities throughout the European Economic Area in order to jointly address breaches of consumer law even if the trader and the consumer are from different countries.
153. In 2017, the Commission concluded that Regulation (EC) No 2006/2004 is not sufficient to effectively address the enforcement challenges of the Single Market, including the challenges of the Digital Single Market.
154. Thus, through the Regulation (EU) 2017/2394, the EU amended the Consumer Protection Cooperation (CPC) Regulation to give all Consumer Law Enforcement Regulators (CLERs) the power to ‘seek or obtain’ remedial commitments from the trader for the benefit of affected consumers’.^[92] However, the authorities do not have the competence to enforce redress on their own.  
155. ‘The idea behind the introduction of unified and comprehensive public enforcement powers for public enforcers is to introduce a one-stop-shop approach to consumer law where enforcement authorities will notify the businesses concerned of the issues, asking them to change their practices and, if necessary, to compensate the affected consumers. However, the Regulation is “without prejudice to the possibility of bringing further public or private enforcement actions under national law” [Art 2.6.].’ ^[93] The Regulation (EU) 2017/2394 provides additional powers for regulatory authorities.^[94]

Abbreviations and Acronyms

ADR	Alternative Dispute Resolution
Art	Article/Articles
BKR	Zeitschrift für Bank-und Kapitalmarketrecht
CAFA	Class Action Fairness Act
CLERs	Consumer Law Enforcement Regulators
CPC	Consumer Protection Cooperation
DT	Deutsche Telekom
EC	European Commission
ECC	European Consumer Centres
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
eID	Electronic Identification
ELI	European Law Institute
etc	et cetera
EU	European Union
EUR	Euro
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GCCP	Code of Civil Procedure (Germany)
GG	Grundgesetz (Germany)
GLO	Group Litigation Order (England)
ibid	ibidem (in the same place)
ie	id est (that is)
KapMuG	Das Kapitalanleger-Musterverfahrensgesetz (Germany)
MDL	Multidistrict Litigation
n	Footnote (internal, ie, within the same chapter)
no	Number
NJW	Neue Juristische Wochenschrift
ODR	Online Dispute Resolution
PCB	Public Complaints Board (Sweden)
PIL	Public Interest Litigation
p	page
para	paragraph/paragraphs
Sec	Section/Sections
trans/tr	Translated, translation/translator
UK	United Kingdom
UKCPR	Civil Procedure Rules (UK)
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
US	United States
USFRCP	Federal Rules of Civil Procedure (US)
v	versus
vg	verbi gratia
vol	volume/volumes
ZZP	Zeitschrift für Zivilprozess

---

Legislation

International/Supranational

Act no. 2013-34L, March 2014 (Loi Hamon)

Civil Procedural Rules of 1999 (UK)

Class Actions Act 2007, Act No 181 of 28 February 2007 (Denmark)

Class Action Fairness Act 2005 (US)

Consumer Basic Act (Japan)

Directive 2013 (EU)

Federal Rules of Civil Procedure (US)

Gesetz zur Einführung von Kapitalanleger (Germany)

Musterverfahrensgesetz (Germany)

Regulation 524/2013 (EU)

Regulation 2017/2394 (EU)

Regulation 2006/2004 (EC)

National

Código de Defesa do Consumidor 1990 (Brazilian Consumer Code) (Brazil)

Código de Processo Civil 2015 (Civil Procedure Code) (Brazil)

Lei nº. 7.347/1985 (Act 7.347/1985) (Brazil)

---

Cases

International/Supranational

Amchem Prods., Inc. v. Windsor (United States Court of Appeals, US) [521 U.S. 519 (1997)]

Caius v. Ticius

Campbell-Ewald Co v Gomez (Supreme Court, US) [136 S Ct 663 (2016)]

Castano v. Am. Tobacco Co. (Court of Appeals, US) [84 F.3d 734 (5th Cir. 1996)]

Cimino v. Raymark Indus., Inc. (Court of Appeals, US) [151 F.3d 297 (5th Cir. 1998)]

Eisen v. Carlisle & Jacquelin (Supreme Court, US) [417 U.S. 156, 177–79 (1974)]

Exxon Mobil Corp. v. Allapattah Servs., Inc., (Supreme Court, US) [545 U.S. 546, 562 (2005)]        

Frank v Gaos (Supreme Court, US), Judgment 10 March 2019 [139 S Ct 1041, No 17-961, 2019 WL 1264582]

In re Google Inc. Cookie Placement Consumer Privacy Litigation, (Court of Appeals, US) [934 F.3d 125 (3d Cir. 2019)]

In re Rhone-Poulenc Rorer Inc. (Court of Appeals, US) [51 F.3d 1293 (7th Cir. 1995)].

Ortiz v. Fibreboard Corp. (United States Court of Appeals, US) [527 U.S. 815 (1999)]

Roes, 1-2 v SFBSC Management (Court of Appeals, US) [944 F.3d 1035 (9th Cir. 2019)]

Zahn v. Int’l Paper Co. (Supreme Court, US) [414 U.S. 291, 301 (1973)]

---

Bibliography

ADR/Ombusman & Regulatory Redress. Available at https://europeanjusticeforum.org/topics/adr-ombudsman/.

Armenta Deu T, Acciones colectivas: reconocimiento, cosa juzgada y ejecución (Marcial Pons 2013).

Baetge D, ‘Class Actions, Group Litigation & Other Forms of Collective Litigation: Germany’ (2007), available at: https://www.law.stanford.edu/wp-content/uploads/sites/default/files/event/261321/media/slspublic/Germany_National_Report.pdf. Accessed 19 June 2024.

Ballon I O, Einführung in das österreichische Zivilprozeßrecht – Streitiges Verfahren (6th edn Leykam)  

Baptista da Silva O, Processo e ideologia, o paradigma racionalista (Forense 2004)

Barberán F and Yuroda K and Ikabe F (ed), Introduction al derecho japonês actual, (Thomson Reuters Aranzadi, 2013).

Baumgartner S P, ‘Class Actions and Group Litigation in Switzerland’ (2006-2007) 27 Northwestern Journal of International Law & Business 301.

Biard A, ‘The group action in France: an UFO in French procedural law with still inconclusive effects after seven years’ (2022) 324 Revista de Processo, S. Paulo.

Broodryk T, ‘Class Actions in South Africa: A Need for Certainty’ in B Fitzpatrick and R Thomas (ed), The Cambridge Handbook of Class Actions: An International Survey (Cambridge Law Handbooks).

Cortés P and Hörnle J, ‘ODR’ at The Hidden World of Consumer ADR: Redress and Behaviour (2011) Conference at the Centre for Socio-legal Studies Oxford, available at https://www.law.ox.ac.uk/sites/default/files/migrated/thehiddenworldofconsumeradr-conferencenote.pdf, accessed 15 November 2022.

Dellavedova B, ‘The role and impact of environmental class actions in Australia’ (2021) 24 (1) Asia Pacific Journal of Environmental Law.

Haratsch A, Die Geschichte der Menschenrechte (5th edn, Universitätsverlag Potsdam, 2020).

Hensler D R, ‘From Sea to Shining Sea. How and Why Class Actions Are Spreading Globally’ (2017) 65 Kansas Law Review.

Hensler D R, ‘The global landscape of collective litigation’, in D R Hensler; C Hodges; I Tzankova (eds), “Class Actions in Context” (Edward Elgar Publishing, 2016).

------- The global expansion of class actions: power, politics and procedural evolution’, in B T Fitzpatrick and R S Thomas (ed), The Cambridge Handbook of class actions: an international survey (Cambridge University Press 2021).

------- A profile of U.S. class actions, 2020. Manuscript made available on 23 December 2020, courtesy of the author.

Hidalgo P G C, ‘Group Litigation in Spain’ (2007) National Report, Stanford University Law School, Global Class Actions Exchange.

Hodges C, Collective redress: the need for new technologies (2019) 42 Journal of Consumer Policy.

-------- Models of ADR, Conference was held at the Centre for Socio-legal Studies, Oxford, 2011, available at https://www.law.ox.ac.uk/sites/default/files/migrated/thehiddenworldofconsumeradr-conferencenote.pdf, accessed 27 December 2022.

Hodges C and Stadler A, Resolving Mass Disputes (Edward Elgar Publishing 2013).

------- ‘Introduction’ in Hodges C and Stadler A (ed), Resolving mass disputes: ADR and Settlement of mass claims (Edward Elgar Publishing 2013).

Hodges C and Voet S, ‘Delivering Collective Redress, Response to the European Commission’s Inception Impact Assessment “A New Deal for Consumers – revision of the Injunctions Directive”’ (2017) University of Oxford, available at https://www.law.ox.ac.uk/sites/default/files/migrated/1710_policy_on_collective_redress_3.pdf,  accessed 27 December 2022.

Jain P, Class action framework in India, National Report, not published yet.

Jongbloed A W, ‘Las acciones colectivas en Holanda’, in A Gidi and E Ferrer Mac-Gregor (ed), Procesos Colectivos (Editorial Porruá 2003).

K M Kliebard, M P Chiu, J W Rissier, J R Roellke, M A Cumming, H Nelson, M A Suehiro, P J Wiese and B R Howard, Morgan, Lewis and Bockius LLP, ‘Class/collective actions in the United States: overview’ (2020) Thomson Reuters, available at: https://uk.practicallaw.thomsonreuters.com/4-617-9264?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_pageContainer. Accessed 13 November 2022.

Kohler J, Der Prozess als Rechtsverhältnis Prolegomena zu einem System des Civilprozesses, (Mannheim Besheimer 1888).

Lindblom H, ‘The Globalization of Class Action – National Report: Group Litigation in Sweden’ (2007) Oxford Conference 12 December 2007.

Lüke W. Der Musterentscheid nach dem neuen Kapitalanleger-Musterverfahrensgesetz: Entscheindungsmuster bei gleichgerichteten Interesse?’ (2016) 119 (2) Zeitschrift für Zivilprozess.

Marcus R, ‘Bending in the breeze: American class actions in the twenty-first century’ (2016) 65 (2) DePaul Law Review.

María Salgado J and Verbic F, ‘Los procesos colectivos en el Proyecto ELI- UNIDROIT sobre principios del derecho procesal civil europeo’ (2022) 323 Revista de Processo, not published yet.

Marinoni L G and Arenhart S C, ‘‘Collective litigation and due process of law: the Brazilian experience’ (21 July 2014) 4/2014/01 International Journal of Procedural Law, SSRN: https://ssrn.com/abstract=2469345, accessed 18 November 2022.

Miller G P, Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard, (2013) University of Chicago Legal Forum.

Mullenix L S, Ending Class Actions as We Know Them: Rethinking the American Class Action, (2014) 64 Emory L. J. 399, available at: https://scholarlycommons.law.emory.edu/elj/vol64/iss2/14, accessed 20 December 2022.

-------- ’Should Mississippi Adopt a Class-Action Rule - Balancing the Equities: Ten Consideration That Mississippi Rulemakers Ought to Take into Account Evaluating Whether to Adopt a State Class Action Rule’ (2005) 24 (5) Mississippi College Law Review.

Oteiza E, ‘La constitucionalización de los derechos colectivos y la ausencia de un proceso que los “ampare”’ in E Oteiza (ed), Procesos Colectivos (Rubinzal-Culzoni 2006).

Passo Cabral A, ‘O novo procedimento-modelo (Musterverfahren) alemão: uma alternativa às ações coletivas’ (2007) 147 Revista de Processo.

Pérez Luño A E, ‘Las generaciones de derechos humanos’. (2013) 2 (1) Revista Direitos Emergentes na Sociedade Global.

Plasket C, ‘Representative standing in South African law’ (2009) (62) Annals of the American Academy of Political and Social Science 256-298.

Pollmann A, Die Menschenrechte: teilbar und ungleichgewichtig! Die Menschenrechte: unteilbar und gleichgewichtig?  - Studien zu Grund- und Menschenrechten (11 Universität Potsdam 2005).

Reuschle F, Bestandsaufnahme und Reformvorschläge [BKR 2020 605].

------- ‘Mehr kollektiver Rechtsschutz’ [NJW Editorial Heft 41 2017].

Robreno E C, The Federal Asbestos Product Liability Multidistrict litigation (MDL-875): Black hole or new paradigm?’ (2013) 23 Widener L.J. 97.

Sajn N, European Parliamentary Research Service, available at https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/637978/EPRS_BRI(2019)637978_EN.pdf. accessed 20 December 2022.

Santana G, Hard Hupfer (2010) 60 Revista de Direito Ambiental.

Sarlet I, Eficácia dos direitos fundamentais (12th edn, Livraria do Advogado 2015).

Silvestri E and Tumanov D, ‘Updates on collective redress litigation: news from Italy and the Russian Federation’ (2020) 10 (2) International Journal of Procedural Law.

Starke G, ‘Redress through ADR: In what circumstances does ADR work – and work best?’ at The Hidden World of Consumer ADR: Redress and Behaviour (2011) Conference at the Centre for Socio-legal Studies Oxford, available at https://www.law.ox.ac.uk/sites/default/files/migrated/thehiddenworldofconsumeradr-conferencenote.pdf, accessed 26 December 2022.

Sugawara I, ‘ADR for consumer protection in Japan, at The Hidden World of Consumer ADR: Redress and Behaviour (2011) Conference at the Centre for Socio-legal Studies Oxford, available at https://www.law.ox.ac.uk/sites/default/files/migrated/thehiddenworldofconsumeradr-conferencenote.pdf, accessed 15 November 2022.

Taruffo M, ‘Ideologie e teorie della giustizia civile’ (2015) 247 Revista de Processo.

Tidmarsh J and D P Welsh, The future of Multidistrict Litigation (2019) 51 (3) Connecticut Law Review 769.

Trzaska A, ‘Poland’ (2019) Class Action Law Review third edition 153.

Upadhyay V, Public Interest Litigation in India: Concepts, Cases, Concerns (1st edn, LexisNexis Butterworths 2007).

Voet S, ‘Belmed – the new Belgian digital portal for consumer ADR’ at The Hidden World of Consumer ADR: Redress and Behaviour (2011) Conference at the Centre for Socio-legal Studies Oxford, available at https://www.law.ox.ac.uk/sites/default/files/migrated/thehiddenworldofconsumeradr-conferencenote.pdf, accessed 19 November 2022.

Von Bülow O, La teoria de las excepciones procesales y los presupuestos procesales, (tr: Miguel Angel Rosas Lichtschein, Juridicas Europa-America 1964.

Von Savigny F C, De la vocación de nuestra época para la legislación y la ciencia del derecho (Universidad Carlos III 2015).

Yeazell S C, ‘Group Litigation and Social Context: Towards a History of the Class Action’. (1977) 77 (6) Columbia Law Review.

---