Forgot your password?
Please enter your email & we will send your password to you:
My Account:
Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
1. INTRODUCTION
Collective redress is an important means of access to justice and has been on the agenda of the European Commission from quite some time. 1
As it is well known, the modern economy can sometimes create situations where a large number of people are harmed by the same illegal practices (mass harm situation). By allowing "many similar legal claims to be bundled into a single court action", collective redress promotes greater access to justice (particularly in cases where the individual damage is low and potential claimants would not consider it would be worth pursuing an individual claim) and contributes to the efficient administration of justice (following reasons of procedural economy). 2
However, at the same time, collective redress can potentiate abusive law suites, as evidenced by the American system of class actions. Hence the reason why class actions are usually viewed in the United States has a synonym of controversy: in a highly controversial way, they are as criticized by some as they are acclaimed by others.
Given the advantages and popularity of arbitration, it is natural to wonder whether it is conceivable to combine collective redress with arbitration (the so-called ‘collective arbitration’); 3 particularly in the wake of the reference that the European Commission made to alternative dispute resolution procedures — where arbitration clearly fits — in its Recommendation of 11 June 2013 on collective redress (see paragraph 16 of the preliminaries and paragraph 26 of the Recommendation). 4
Two questions are generally posed when addressing the possibility of combining class actions or collective redress with arbitration. First, is it possible? Second, how should it be organized and conducted?
These are the two main questions we will analyse in the present article, from a European perspective on the subject.
2. IS COLLECTIVE ARBITRATION POSSIBLE?AN OPTIMISTIC VIEW ON THE SUBJECT, GIVEN THE FLEXIBILITY AND EVOLUTION OF ARBITRATION
This is the first question and it is a question that makes sense, because as the United States Supreme Court held (in what concerns the combination of class actions with arbitration), "class-action arbitration changes the nature of arbitration." 5
Given the controversy of the subject, the easiest and more conservative solution would be to take a negative approach and, as we will see, there are certainly many reasons for that. We prefer, however, a more optimistic view, considering the well-known flexibility and evolution of arbitration.
It is important to recall that, throughout the years, arbitration has proven itself to be a very flexible dispute resolution method. Constantly facing new realities and challenges, arbitration managed to adapt to certain situations that, at first sight, would seem impossible to adjust to.
Being a very old form of dispute resolution, we can say that arbitration has come a long way. From its very distant roots (so remote they seem almost impossible to trace) to more recent years, the evolution of arbitration is absolutely astonishing and undeniable. 6
Such evolution, of course, was not (and is not) easy. There have been many obstacles along the way, some roads going nowhere, which sometimes make us wonder about the efficiency of arbitral tribunals to handle certain disputes. Nevertheless, the truth is arbitration has constantly kept pushing its boundaries to new territories, defying those who have little or no faith in the arbitral system.
For instance, 20 years ago many people certainly didn’t think that arbitration was able to face and solve issues of competition, tax or labor law, intellectual property, bankruptcy or insolvency, bribery and corruption, etc. In many civil law jurisdictions even national public law issues are not arbitrable. And today — albeit with a few limits — we have seen that, in several countries, some of these disputes can be arbitrable.
And what about the possibility of arbitral tribunals to order interim measures and ex parte preliminary orders? What about third party intervention, consolidation, etc.?
Twenty years ago, many authors believed this could never be possible in arbitration. Well, the passing of time has proven otherwise.
When confronting the possibility of combining class actions or collective redress with arbitration, we should not simply exclude such possibility. Of course, given the many difficulties on the subject, it would be easy to have a negative approach. However, as mentioned above, this might not be the wisest approach.
One thing that the (long) evolution of arbitration has demonstrated is that we should never say never in arbitration; we should not underestimate the flexibility of this dispute resolution method and its constant capacity to surprise us. The American case law has already proven this, demonstrating that class arbitration is possible — despite the many difficulties the subject has lately been facing in the United States (we refer, particularly to i. Stolt-Nielsen S.A. v AnimalFeeds International Corp., ii. AT&T Mobility LLC v Concepcion, iii. Oxford Health Plans LLC v Sutter, and iv. American Express Co. v Italian Colors Restaurant). 7
Therefore, the main question at this moment should not be if class or collective arbitration is possible, but how it should be organized and conducted. This is clearly the key question and that which we will try to answering in the next chapter, by focusing on the opt-in/opt-out distinction.
3. HOW SHOULD COLLECTIVE ARBITRATION BE ORGANIZED AND CONDUCTED? THE ‘OPT-IN’ VS. ‘OPT-OUT’ SYSTEM
As stated above, this is the key question. This is where class or collective arbitration face major difficulties.
Among the different issues that could be analyzed, we will focus on its main topic: the opt-in vs. opt-out system. As a matter of fact, and in our opinion, choosing one or the other might hold the key to truly unlock collective arbitration in Europe.
As is well known, in an opt-out system (like the American class action model) "victims of a defendant’s conduct are automatically included in litigation over that conduct, unless they take steps to exclude themselves from that lawsuit". 8 All individuals will be bound by the judgment, except for those who expressly opted out.
Differently, in an opt-in system, claimants will have to take affirmative steps to be represented in the group, meaning that only those who opted in will be bound by the judgment. This is the model which the majority of the European countries are familiar to (Portugal is one of the few exceptions). 9
This distinction is important because, as we will see below, the opt-in system might be the decisive factor in construing a reliable and efficient collective arbitration model.
3.1 The Consensual Nature of Arbitration and the Problem wit the 'Opt-Out' System
Consent is the cornerstone of arbitration, the pierre angulaire de l’arbitrage. 10 This is quite obvious and yet, when addressing class or collective arbitration, many authors seem to forget it.
When analyzing the possibility of combining class actions or collective redress with arbitration, this is something that cannot just simply be ignored. 11 After all, consent is a prerequisite for arbitration12 and its importance should never be underestimated. 13 The consensual nature of arbitration is at the heart of the arbitral system and represents the fundamental difference from state court proceedings14 (this is the reason why many authors consider, for instance, that mandatory or compulsory arbitration is not real arbitration). 15
That being said, it is not difficult to see the conceptual difficulties that may arise here. As some authors correctly observe, at first sight arbitration and class actions do not seem compatible with one another. 16 In fact, they seem to be mutually exclusive processes, in the sense that they seem to mutually exclude one another.
This is mainly due to the opt-out system, which contravenes the consensual nature of arbitration. It is difficult to sustain that someone could be bound by an arbitration agreement and be automatically included in the arbitration process, due to the sole fact that such person did not expressly opt out, with all the known difficulties to do so or even to be aware of that possibility in due time.
The opt-out system is, in our opinion, the center of the many procedural problems that class or collective arbitration are facing. We refer not only to the problem concerning the consensual nature of arbitration, but also to three other related issues:
a) The res judicata effect — with the opt-out system there is a risk that someone would be represented without him being aware of it, with the relevant consequence of being bound by the judgment, since he/she hasn’t opted out;17
b) confidentiality — the opt-out system seems to compromise one of the most important advantages of arbitration.18 Potential class members must have the opportunity to opt-out, which implies some (relevant) degree of public disclosure. This need of disclosure is much higher in an opt-out system, because as Professor Strong rightly observes “failure to opt out leads to the extinguishment of a claim, whereas failure to opt in allows an individual claim to survive, even if the party cannot take advantage of a positive result arising out of the initial proceeding”.19 Hence the reason why providing adequate notice to potential claimants is so vital in an opt-out proceeding;20 and
c) recognition and enforcement uncertainties under the New York Convention21 — with an opt-out system, a variety of objections could be invoked to oppose the recognition and enforcement of a class or collective arbitration award, such as: i. article V, paragraph 1 (b) [the non-present class member can always argue that he was not given proper notice of the arbitration]; ii. article V, paragraph 1 (d) [there can also be problems with lack of consent, when interpreting the agreement of the parties]; and iii. article V, paragraph 2 (b) [public policy can always be tricky on this subject, particularly in a continent, such as Europe, where class actions or collective redress do not have a strong tradition and where the majority of countries follows and opt-in model]. 22
All things considered, it is really not surprising that the future of class arbitration remains unsettled in the United States and it could soon become a "relatively unusual creature," "theoretically possible, but rare as a practical matter". 23
In our opinion, as we will see in the next chapter, if Europe wants to create a reliable and efficient collective arbitration model it must avoid the referred problems and try another approach, an opt-in approach.
3.2. The ‘Opt-In’ System as the Key to Unlock Collective Arbitration in Europe
As mentioned before, collective redress has been on the agenda of the European Commission for quite some time.
The recent development consists of the 11 June 2013: a) Communication "Towards a European Horizontal Framework for Collective Redress" [Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM(2013) 401 final]; and the b) Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law (2013/396/EU).
To put it in a few words, collective redress is "the EU answer to the US class action" 24 and, with all due respect, it is a better answer.
First of all, it is a necessary answer, because there is no uniformity in the Member States regarding the procedural mechanisms to deal with mass claims. National mechanisms vary considerably on this subject. 25 It is therefore quite understandable that the Commission felt the need to recommend collective redress principles to Member States.
It is also a different answer. Perhaps the most distinct feature of the emerging EU regime is the distance from the American class action. 26 The European Commission has made it clear that it took no inspiration from US-style class actions. On the contrary.
In a Memorandum issued on the 11 June 2013, the Commission unequivocally stated that "the European approach to collective redress clearly rejects the US style system of class actions." 27
But that is not all. The aversion towards US class actions is also quite clear under the referred Communication and Recommendation (likewise from 11 June 2013). In the first one, for instance, we can read that:
For the Commission, any measures for judicial redress need to be appropriate and effective and bring balanced solutions supporting European growth, while ensuring effective access to justice. Therefore, they must not attract abusive litigation or have effects detrimental to respondents regardless of the results of the proceedings. Examples of such adverse effects can be seen in particular in ‘class actions’ as known in the United States. The European approach to collective redress must thus give proper thought to preventing these negative effects and devising adequate safeguards against them.
Class actions in the US legal system are the best-known example of a form of collective redress but also an illustration of the vulnerability of a system to abusive litigation. Several features of the US legal system have made class actions a particularly powerful instrument that is, however, feared by those on the defending side, namely trade and industry as it can be used as a forceful tool to compel them to settle a case, which may not necessarily be well founded. Such features are for instance contingency fees of attorneys or the discovery of documents procedure that allows ‘fishing expeditions’. A further important feature of the US legal system is the possibility to seek punitive damages, which increases the economic interests at stake in class actions. This is enhanced by the fact that US class actions are legally ‘optout’ procedures in most cases: the representative of the class can sue on behalf of the whole class of claimants possibly affected without them specifically requesting to participate. In recent years, US Supreme Court decisions have started to progressively limit the availability of class actions in view of the detrimental economic and legal effects of a system that is open to abuse by frivolous litigation. 28
The Recommendation further develops the above-mentioned ideas, creating a different model that clearly distinguishes itself from class actions. Many of the collective redress principles recommended by the Commission prove this. We refer particularly to the:
a) prohibition of punitive damages ("the compensation awarded to natural or legal persons harmed in a mass harm situation should not exceed the compensation that would have been awarded, if the claim had been pursued by means of individual actions. In particular, punitive damages, leading to overcompensation in favour of the claimant party of the damage suffered, should be prohibited"); 29
b) limits on contingency fees, which are not accepted as a general rule ("the Member States that exceptionally allow for contingency fees should provide for appropriate national regulation of those fees in collective redress cases, taking into account in particular the right to full compensation of the members of the claimant party"); 30
c) limits on third party funding ("the Member States should ensure, that, in addition to the general principles of funding, for cases of private third party funding of compensatory collective redress, it is prohibited to base remuneration given to or interest charged by the fund provider on the amount of the settlement reached or the compensation awarded unless that funding arrangement is regulated by a public authority to ensure the interests of the parties"). 31
Among the different features that mark the difference between the European collective redress model and the American class actions, one assumes particular relevance in the context of this article: the opt-in system.
The European Commission has chosen an opt-in system, 32 which is quite understandable if we consider the fact that the opt-out system does not work well in EU jurisdictions. Take the Portuguese case for instance.
Portugal has what might be called a class action mechanism (the so-called popular action — "acção popular") 33 and, as referred before, is one of the few European countries that actually follows an opt-out procedure. Such procedure, however, combined with the res judicata effect, has been heavily criticized by some authors. 34 The regime can have severe consequences on the holders of homogeneous individual interests who have not exercised the right to exclude themselves from representation — in principle, they will not be able to file another action with the same object, if the defendant is acquitted. 35 The main problem is that the law does not require personal identification of those to whom the writ of summons is directed (which, of course, would be very difficult or even impossible). The summons is made via one or various announcements made public through the media or through public notice, which may not be sufficient to reach its intended recipients. And the risk is even higher since anyone (any citizen, as well as certain associations and foundations) can file a popular action36 — the legitimacy criterion is quite broad. Therefore, there is the possibility that someone is being represented in a popular action without even knowing it, with the relevant consequence of being bound by the judgment, since he hasn’t opted out. 37 It is also important to recall that the Popular Action Law does not foresee an adequacy of representation criteria like the one contemplated in the Rule 23, (a), of the American Federal Rules of Civil Procedure. 38
As a result, the opt-out procedure has received many critics in Portugal and after so many years does not work well at all. The same can be said about the popular action per se, which is not very common in Portugal. 39
The opt-in choice by the European Commission is therefore quite understandable and was to be expected. Still, it was a thoughtful decision.
As the Commission reasoned, "a significant number of stakeholders, in particular businesses, strongly oppose the ‘opt-out’ model, arguing that it is more prone to abuse and that it may be unconstitutional in some Member States, or at least incompatible with their legal traditions. On the other hand, some consumer organisations argue that ‘opt-in’ systems may fail to deliver effective access to justice for all consumers who have been harmed. In their view, the availability of ‘opt-out’ is therefore desirable, at least as an option in appropriate cases and subject to approval by the court. (…) The ‘opt-in’ system respects the right of a person to decide whether to participate or not. It therefore better preserves the autonomy of parties to choose whether to take part in the litigation or not. In this system the value of the collective dispute is more easily determined, since it would consist of the sum of all individual claims. The court is in a better position to assess both the merits of the case and the admissibility of the collective action. The ‘optin’ system also guarantees that the judgment will not bind other potentially qualified claimants who did not join. The ‘opt-out’ system gives rise to more fundamental questions as to the freedom of potential claimants to decide whether they want to litigate. The right to an effective remedy cannot be interpreted in a way that prevents people from making (informed) decisions on whether they wish to claim damages or not. In addition, an ‘opt-out’ system may not be consistent with the central aim of collective redress, which is to obtain compensation for harm suffered, since such persons are not identified, and so the award will not be distributed to them". 40
All things considered, the Commission chose the opt-in approach. And it has chosen wisely.
It is true that an opt-out system permits to aggregate (at least formally) a more significant number of persons. This has traditionally been an important advantage of this model, compared to the opt-in principle. 41 However, in this era of information that we (fortunately) live in, where many people have easy access to the internet and social networks, and where potential claimants are much more well informed of their rights, the advantages of the opt-out system, in our opinion, are not as significant as they once might have been.
An opt-in system, today, can also gather a significant number of persons and potentiate an effective access to justice for all consumers who have been harmed, avoiding, at the same time, litigation abuse.
More importantly, the opt-in system is more coherent with the possibility of combining collective redress with arbitration and may also prevent some of the problems class arbitration faces in the United States.
For instance, with an opt-in model there is no risk that someone would be represented without him being aware of it. The res judicata is, therefore, not an obstacle.
There are also fewer problems with confidentiality. The need to provide adequate notice to potential claimants is not as vital as in opt-out proceedings. If someone did not opt in, there is still a possibility to file an individual claim.
The same can be said about the recognition and enforcement of collective arbitration awards under the New York Convention. The problems previously described as a consequence of the opt-out system simply do not apply to an opt-in model.
Finally, and most importantly, an opt-in system is more consistent with the consensual nature of arbitration and with arbitration per se.
Therefore, it is time to answer the question we posed on the title of this third chapter: "How should collective arbitration be organized and conducted?" The answer is: by an opt-in system.
The opt-in principle might be the necessary key to unlock collective arbitration in Europe and to create a reliable and efficient model of collective arbitration. 42 A model that can have a real future and not an uncertain future, as class arbitration is facing in the United States at the moment.
4. CONCLUSION
The conclusion of this text is favorable to a system (the opt-in one) that it is better suited for the arbitration process when compared with the alternatives. It assumes that arbitration may be more efficient and better prepared as the choice of a skilled Tribunal for the complexities of this system suits better the needs than the traditional national courts.
However, this conclusion does not mean that the combination of arbitration with collective redress and class actions case is not a land to be discovered and only afterwards organized. One may by optimistic and even revolutionary about the beauties of arbitration, and this is our case. But one way of killing the conditions for the spread of a culture that favors optimism and innovation, is to be naif to the point of forgetting the complexities of the application of the model to a very different kind of dispute, where consent is not always absolutely clear, the rules of the process need to be tailored and the role of public entities (like, for instance, the Public District attorneys in Portugal) is difficult to be integrated as their experience in relation to arbitration is very limited, to say the least.
Another problem that appears in the critical path of the system is the relation between situations in which responsibility is born from a contract and other in which responsabilité délictuelle or tort is the source of the problem.
This, and other equivalent problems, exist. As before with multiparty situations, "group of companies" issues, tax arbitration and even public law arbitration, experience shows that pessimism can be been destroyed as the dawn smog disappears gradually when the sun comes strong and warm.
1 See Gorywoda, Lukasz, "The Emerging EU Legal Regime for Collective Redress: Institutional Dimension and Its Main Features", in Cross-Border Class Actions. The European Way, 2014, pages 173-188, Harbour, Laurel / Evans, John / Poisson, Erwan / Fléchet, Camille, "Representative actions and proposed reforms in the European Union", in World Class Actions. A Guide to Group and Representative Actions around the Globe, 2012, pages 144-168, Wrbka, Stefan, "European consumer protection law: Quo vadis? — thoughts on the compensatory collective redress debate", Uytsel, Steven van, "Collective actions in a competition law context — reconciling multilayer interests to enhance access to justice?", both articles published in Collective Actions — Enhancing Access do Justice and Reconciling Multilayer Interests?, 2012, pages 23-56 and 57-92, and Marisi, Flavia, Il Class Action Arbitration — La sua evoluzione negli Stati Uniti e la sua possibile introduzione nell’Unione Europea, 2011, pages 200-211. Regarding the evolution of collective redress mechanisms in Europe, see Hodges, Christopher, The Reform of Class and Representative Actions in European Legal Systems. A New Framework for Collective Redress in Europe, 2008, pages 9 and following, and Luther, Jörg, "The constitutional impact of class actions in European legal systems", in The Law and Economics of Class Actions in Europe: Lessons from America, 2012, pages 309-313.
2 European Commission Communication [COM(2013) 401 final], page 4.
3 On the distinction between "class arbitration", "mass arbitration" and "collective arbitration", see Strong, SI, Class, Mass and Collective Arbitration in National and International Law, 2013.
4 Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law (2013/396/EU).
5 Stolt-Nielsen S.A. v AnimalFeeds International Corp., 130 S. Ct. 1758 (2010). See Rubino-Sammartano, Mauro, International Arbitration: Law and Practice, 3rd edition, 2014, pages 183-184.
6 Regarding the historical origins of Arbitration and its evolution through the years, see, for instance, Born, Gary, International Commercial Arbitration, vol. I, 2nd edition, 2014, pages 6-70, Blackaby, Nigel / Partasides, Constantine / Redfern, Alan / Hunter, Martin, Redfern and Hunter on International Arbitration, 6th edition, 2015, pages 4-6, Baptista, Luiz Olavo, Arbitragem Comercial e Internacional, 2011, pages 21-26, and Mendes, Armindo Ribeiro, "A uniformizaçao do direito da arbitragem através da adopçao da Lei-Modelo da CNUDCI sobre a arbitragem comercial internacional", in V Congresso do Centro de Arbitragem Comercial — Intervenções, 2012, pages 223 and following. Despite the very distant roots of arbitration, it can be said that it was particularly after the end of the Second World War that arbitration began its fast growth until today (Bernardini, Piero, L’arbitrato nel commercio e negli investimenti internazionali, 2nd edition, 2008, page XI) — this evolution was, without a doubt, more accentuated in the last thirty years (see Fouchard, Philippe / Gaillard, Emmanuel / Goldman, Berthold, Fouchard Gaillard Goldman On International Commercial Arbitration, 1999, page 1).
7 Regarding these case law, see, for instance, Born, Gary, International Commercial Arbitration, vol. I, cit., pages 1514-1523, Strong, SI, Class, Mass and Collective Arbitration…, cit., pages 12-14, 106-110, 206 and following, 361- 362, Park, William W., "La jurisprudence américaine en matiere de «class arbitration»: entre débat politique et technique juridique", in Revue de l’Arbitrage, volume 2012, no. 3, 2012, pages 507-538, and Orgel, Marc, Class Arbitration — Von der Gruppenklage zum Gruppenschiedsverfahren und zurück? Eine Untersuchung zum US-amerikanischen Schiedsverfahrensrecht, 2013, pages 317 and following.
8 Hausfeld, Michael D. / Ratner, Brian A., "Prosecuting class actions and group litigation", in World Class Actions. A Guide to Group and Representative Actions around the Globe, 2012, page 546. See also Sousa, Miguel Teixeira de, A legitimidade popular na tutela dos interesses difusos, 2003, page 209.
9 European Commission Communication [COM(2013) 401 final], page 11. See also Hodges, Christopher, The Reform of Class and Representative Actions in European Legal Systems…, cit., page 119.
10 These are among the several expressions that many authors usually refer to describe the importance of consent in arbitration. See, for example, Mantilla-Serrano, Fernando, "Multiple parties and multiple contracts: divergent or comparable issues?", and Youssef, Karim, "The limits of consent: the right or obligation to arbitrate of non-signatories in group of companies", both articles published in Multiparty Arbitration, Dossier VII, 2010, pages 25 and 72, Hanotiau, Bernard, Complex Arbitrations: Multiparty, Multicontract, Multi-issue and Class Actions, 2005, pages 32-33, Craig, W. Laurence, "Introduction", and Park, William W., "Non-signatories and international contracts: an arbitrator’s dilemma", both articles published in Multiple Party Actions in International Arbitration, 2009, page lvii and pages 3-4, Caron, David D. / Caplan, Lee M., The UNCITRAL Arbitration Rules — A Commentary, 2nd edition, 2013, page 54, Steingruber, Andrea Marco, Consent in International Arbitration, 2012, page 1, and Diallo, Ousmane, Le consentement des parties à l’arbitrage international, 2010, page 7.
11 As the United States Supreme Court clearly stated in the referred Stolt-Nielsen S.A. v AnimalFeeds International Corp., "arbitration is a matter of consent".
12 Blackaby, Nigel / Partasides, Constantine / Redfern, Alan / Hunter, Martin, Redfern and Hunter on International Arbitration, cit., page 85.
13 Vide Diallo, Ousmane, Le consentement des parties à l’arbitrage international, cit., page 7.
14 See Voser, Nathalie, "Multi-party disputes and joinder of third parties", in 50 Years of the New York Convention, ICCA Congress Series, no. 14, 2009, page 350, and Fouchard, Philippe / Gaillard, Emmanuel / Goldman, Berthold, Fouchard Gaillard Goldman On International Commercial Arbitration, cit., page 1.
15 Cfr. Jarrosson, Charles, "L’arbitrage et la Convention européenne des droits de l’Homme", in Revue de l’Arbitrage, vol. 1989, no. 4, 1989, pages 581 and following, Besson, Sébastien, "Arbitration and Human Rights", in ASA Bulletin, vol. 24, no. 3, 2006, page 398, and Silva, Artur Flamínio da, A Resolução de Conflitos Desportivos em Portugal: entre o Público e o Privado, 2016, and "A arbitragem desportiva em Portugal: uma realidade sem futuro? — anotaçao ao acórdao n.o 230/2013 do Tribunal Constitucional", in Desporto & Direito, ano X, no. 28 (Setembro/Dezembro), 2012, pages 68 e 69.
16 See Tuchmann, Eric P., "The administration of class action arbitrations", in Multiple Party Actions in International Arbitration, 2009, page 327, Monteiro, António Pedro Pinto, "Anotaçao ao acórdao Green Tree Financial Corp. v Bazzle, Supreme Court of the United States, 23/06/2003 — class arbitration", in 100 Anos de Arbitragem — os casos essenciais comentados, Coleçao PLMJ, no. 9, 2015, pages 248-251, Brozolo, Luca G. Radicati di, "Class Arbitration in Europe?", in Cross-Border Class Actions. The European Way, 2014, page 214, and García, Ana Montesinos, "Últimas tendencias en la Unión Europea sobre las acciones colectivas de consumo. La posible introducción de fórmulas de ADR", in REDUR — Revista electrónica del Departamento de Derecho de la Universidad de La Rioja, no. 12, 2014, page 105.
17 See García, Ana Montesinos, "Últimas tendencias en la Unión Europea...", cit., pages 105-106.
18 Although not an absolute principle, confidentiality is usually considered one of the biggest advantages of arbitration — see Poudret, Jean-François / Besson, Sébastien, Comparative Law of International Arbitration, 2007, pages 315-320, Lachmann, Jens-Peter, Handbuch für die Schiedsgerichtspraxis, 3rd edition, 2008, pages 41-45, Matray, Didier / Matray, Gautier, "La rédaction de la convention d’arbitrage", in La convention d’arbitrage. Groupes de sociétés et groupes de contrats — Arbitrageovereenkomst. Vennootschapsgroepen en groepen overeenkomsten, no. 9, 2007, page 23, and Correia, A. Ferrer, "Da arbitragem comercial internacional", in Temas de Direito Comercial e Direito Internacional Privado, 1989, pages 174-175.
19 Strong, SI, "From Class to Collective: The De-Americanization of Class Arbitration", in Arbitration International, vol. 26, no. 4, 2010, page 513. Regarding this mater, see also Kuck, Lea Haber / Litt, Gregory A., "International Class Arbitration", in World Class Actions. A Guide to Group and Representative Actions around the Globe, 2012, page 729, and García, Ana Montesinos, "Últimas tendencias en la Unión Europea...", cit., pages 106-107.
20 See Hausfeld, Michael D. / Ratner, Brian A., "Prosecuting class actions and group litigation", cit., pages 547-548.
21 See Strong, SI, Class, Mass and Collective Arbitration…, cit., pages 346-357, Kuck, Lea Haber / Litt, Gregory A., "International Class Arbitration", cit., pages 732-736, and Nater-Bass, Gabrielle, "Class Action Arbitration: A New Challenge?", in ASA Bulletin, vol. 27, no. 4, 2009, page 686.
22 Regarding the importance and role of public policy in arbitration, see Monteiro, António Pedro Pinto, "Da ordem pública no processo arbitral", in Estudos em Homenagem ao Prof. Doutor José Lebre de Freitas, vol. II, 2013, pages 589-673.
23 Born, Gary, International Commercial Arbitration, vol. I, cit., page 1523.
24 Gorywoda, Lukasz, "The Emerging EU Legal Regime for Collective Redress…, cit., page 173. On the concept of collective redress, see Hodges, Christopher, The Reform of Class and Representative Actions in European Legal Systems…, cit., page 3.
25 See Issacharoff, Samuel / Miller, Geoffrey P., "Will aggregate litigation come to Europe?", in The Law and Economics of Class Actions in Europe: Lessons from America, 2012, pages 48-65, and Gorywoda, Lukasz, "The Emerging EU Legal Regime for Collective Redress…, cit., pages 181-184.
26 See Gorywoda, Lukasz, "The Emerging EU Legal Regime for Collective Redress…, cit., page 186.
27 European Commission Memo, available at http://europa.eu/rapid/press-release_ MEMO-13-530_fr.htm;%20http://europa.eu/rapid/press-release_IP-13- 525_en.htm.
28 European Commission Communication [COM(2013) 401 final], pages 3 and 8.
29 Paragraph 31 of the European Commission Recommendation (2013/396/EU).
30 Paragraph 30 of the European Commission Recommendation (2013/396/EU) — see also paragraph 29.
31 Paragraph 32 of the European Commission Recommendation (2013/396/EU) — see also paragraphs 14, 15 and 16.
32 Paragraphs 21 to 24 of the European Commission Recommendation (2013/396/EU).
33 Law no. 83/95, of 31 August 1995 (Law of Popular Action) and article 52, paragraph 3, of the Portuguese Constitution. As some authors correctly observe, the Popular Action Law was in some points influenced by the American class actions. See Martins, António Payan, Class Actions em Portugal? Para uma análise da Lei n.º 83/95, de 31 de Agosto — Lei de Participação Procedimental e de Acção Popular, 1999, page 26 (and also the Forward of Júdice, José Miguel), Sousa, Miguel Teixeira de, A legitimidade popular na tutela dos interesses difusos, cit., page 119, Fábrica, Luís Sousa, "A Acçao Popular no Projecto de Código de Processo nos Tribunais Administrativos", in Cadernos de Justiça Administrativa, no. 21, 2000, page 17, and Grinover, Ada Pellegrini, "A açao popular portuguesa: uma análise comparativa", in Lusíada — Revista de Ciência e Cultura, 1996, page 246. For an analysis of the Popular Action Law,see also Monteiro, António Pedro Pinto / Júdice, José Miguel, "Class Actions & Arbitration in the European Union — Portugal", in Estudos em Homenagem a Miguel Galvão Teles, vol. II, 2012, pages 190-199, Monteiro, Nuno Líbano / Monteiro, António Pedro Pinto, "Portugal", in Getting the Deal Through — Class Actions 2016, pages 59-61, Gouveia, Mariana França / Garoupa, Nuno, "Class Actions in Portugal", in The Law and Economics of Class Actions in Europe: Lessons from America, 2012, pages 342-350, and Pimentel, Joao / Júdice, José Maria, "Portugal", in The International Comparative Legal Guide to Class & Group Actions 2014. A practical Cross-Border Insight into Class and Group Actions Work, 6th edition, pages 140-145.
34 See Freitas, José Lebre de, "A Acçao Popular no Direito Portugues", in Estudos sobre Direito Civil e Processo Civil, vol. I, 2nd edition, 2009, pages 215-219 and "A acçao popular ao serviço do ambiente", in Lusíada — Revista de Ciência e Cultura, 1996, pages 238-241, Martins, António Payan, cit., pages 112-117 and 128, Ascensao, José de Oliveira, Direito Civil. Teoria Geral, vol. III, 2002, pages 117-118, and Fábrica, Luís Sousa, "A Acçao Popular no Projecto...", cit., pages 17-18.
35 As a matter of fact, an opportunistic group defined by quickness and lack of skills could compromise a better representation by lawyers more prepared and specialized.
36 See Freitas, José Lebre de, "A Acçao Popular no Direito Portugues", cit., page 217.
37 The risk is even higher if the class action is filed by lawyers not really trustworthy.
38 See Martins, António Payan, Class Actions em Portugal…, page 112, and Grinover, Ada Pellegrini, "A açao popular portuguesa…", cit., page 250.
39 As some authors observe, "the effectiveness of class action litigation in Portugal is dubious to say the least" (Gouveia, Mariana França / Garoupa, Nuno, "Class Actions in Portugal", cit., page 349).
40 European Commission Communication [COM(2013) 401 final], pages 11 and 12.
41 On the distinction between the "opt-in" and "opt-out" system, see Hodges, Christopher, The Reform of Class and Representative Actions in European Legal Systems…, cit., pages 118-130, Hausfeld, Michael D. / Ratner, Brian A., "Prosecuting class actions and group litigation", cit., pages 545-551, Issacharoff, Samuel / Miller, Geoffrey P., "Will aggregate litigation come to Europe?", cit., pages 59-65, and Sousa, Miguel Teixeira de, A legitimidade popular na tutela dos interesses difusos, cit., pages 209-214.
42 Demonstrating its preference for an "opt-in" system, see also García, Ana Montesinos, "Últimas tendencias en la Unión Europea...", cit., page 105, and Billiet, Philippe / Association for International Arbitration (AIA), "General Conclusion", in Philippe Billiet (editor), Class Arbitration in the European Union, 2013, page 233.