1. INTRODUCTION

If we look at the roots of regulated collective redress in the European Union, we can trace them back to 17th-century England. Collective redress is a concept that derived from England’s "Bill of Peace", 2 where multiple parties sharing common interests (a ‘multitude’) could go to court and have their cases resolved by the Courts of Chancery. The concept was later modified and brought to the US, where the American understanding of collective justice gave it new rise, amounting to US class actions. Modern class arbitration has existed in the US for over 20 years now, and has been shaped mainly through arbitration case law. 3

Given the growing interest in large-scale group injuries all over the world, the increasing involvement of non-US parties in international class arbitration4 and the engagement of national and EU officials in discussions on collective redress in Europe, 5 it is worth analyzing whether US-style class arbitration, or a European corollary thereof, should be adopted in European jurisdictions. 6

Hereby it must be noted that numerous alternative forms of collective redress exist, such as group actions, collective interest actions, enhanced res judicata effects, etc., which may already have shaped one or more European jurisdictions. It may therefore be that the European forum is not open for one single approach to collective redress or would rather welcome only one or more of the alternative forms.

This article aims to provide an overview of the currently existing means for collective redress in a selected number of European jurisdictions and to provide a prima facie reflex as to what extent there may be room for class arbitration in those jurisdictions. In the case that the answer to the latter was negative, it is worth looking at the level in which foreign class arbitration awards could at least enjoy recognition and enforcement in the European Union.

It exceeds the scope of this article to render a complete and profound analysis on the forms of collective redress in all European jurisdictions. For such overview, we recommend P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p.

A further limitation exists in that only particular observations in relation to the selected jurisdictions will be presented. This article therefore emphasizes characteristics without aiming to be exhaustive in relation to selected jurisdictions.

Last but not least, every European jurisdiction provides already for a minimum possibility for group actions by allowing Parties’ claims or defences to be joined under certain conditions and by allowing claims to be transferred to other persons by contract, following which the assignee subrogates in the rights of the assignor and may ultimately have collected a bundle of independent claims in a single lawsuit. The present article will not focus on these basic sources of potential group actions but will only focus on enhanced group actions and other particular forms of collective redress in the selected jurisdictions.

2. COMMON TYPES OF COLLECTIVE REDRESS IN THE EU

Collective redress within the European Union usually takes the form of a group action or a collective interest action. The latter is often referred to as a representative action.

In a group action several persons form a group of parties as their individual claims merge together. This usually happens through a consensual joinder of claims. Each member of such a group is and remains an individual party to the procedure. A default ruling may be rendered against (only) those parties that have not appeared in court.

A collective interest action (also known as a representative action) on the other hand exists when a party ‘represents’ a ‘collective interest’ (e.g. the interests of its members), while only the representing party (as opposed to the persons whose interests are represented) can be regarded as a party to the proceeding. The beneficiaries are usually not required to participate in the trial. Stringent conditions may exist as to who can be a representing entity.

A class action is neither a group action nor a collective interest action. Indeed, as opposed to a collective interest action, the class is construed through an opt-in or an opt-out mechanism, following which all members of the class are considered to be party to the proceeding. As opposed to a group action, the members are represented by a so-called class representative and conduct no longer mere individual claims. Their claims can be described as procedurally merged into one class, consisting of numerous member parties to the proceeding.

The European legal tradition, as will be explained further, is not much familiar with class actions and certainly not with class arbitrations. 7

3. CLASS ARBITRATION IN THE UNITED STATES

Class arbitration is very popular in the United States. The number of US class arbitration cases is expanding at a rapid rate, amounting to over 430 cases today. 8 The increase in numbers occurred especially after leading US arbitration institutions such as AAA and JAMS decided to adopt specific rules on class arbitration. 9

Consequently, it can be said that US class arbitration now has a fixed pattern and is grosso modo subject to the following three-step approach:

1. The clause construction stage: the arbitrator determines whether the arbitration agreement permits the arbitration to proceed on behalf of or against a class. 10 A distinction is to be made between: a) an arbitration agreement explicitly authorizing class arbitration, b) an arbitration agreement explicitly prohibiting class arbitration, and c) an arbitration agreement silent on the possibility of class arbitration. Unfortunately, the latter scenario has divided US adjudicators. 11

2. The class certification stage: the arbitrator is guided to allow the class certification only where the arbitral clause was deemed to allow class arbitrations or where a court has ordered that class arbitration may be maintained. 12

3. The final award: the arbitrator renders a final award on the merits, which is reasoned and defines the class.

Very few US class arbitrations actually result in a final award on the merits. Indeed, the vast majority of cases are settled, withdrawn or dismissed. Opponents deduct from statistics that class arbitrations frustrate the efficiency that arbitration procedures are meant to offer, whereas proponents point out that class treatment enhances communication and negotiation, ultimately leading to high settlement rates.

The argument of the proponents is of particular interest, considering that European bodies are often found to ‘steer’ the ongoing debate on new forms of collective redress towards means for settling mass claims in an amicable manner.

4. EUROPEAN LAW TRADITIONS AND CLASS ARBITRATION

Consultations conducted by three separate EC Directorates General have been found to demonstrate a widespread hostility within European Member States towards US-style class actions. 13 Some features of the US system have even been described as a "toxic cocktail" and widespread agreement seems to exist among stakeholders that they should be avoided at all cost in any European response to improve access to collective remedies.

The constitution of a class through opt-out mechanisms (that may even lead to situations where persons don’t even know that they are member to a class) is contrary to European law traditions. European legal thinking indeed emphasizes party autonomy, the voluntary character of alternative dispute resolution methods, party equality, the right to present the case, and individual control over substantive rights and procedure. Nevertheless, EU style class arbitrations that would reflect European legal thinking should not a priori be excluded.

In addition to concerns in relation to US class actions, it seems that Europe also takes a different view to arbitration as compared to the US perspective. The current EU perspective may even include a paradox. Indeed, on the one hand we observe the rise of consumer-ODR and consumer-ADR in Europe, 14 while on the other hand arbitration clauses in a consumer contract are still regarded as ‘unfair’ towards consumers. 15

Last but not least, civil law traditions take an accusatorial approach, as opposed to the Anglo-Saxon inquisitorial approach, to both arbitration and litigation. This makes that the individual right and ability to present one’s own case form an essential element of the way in which the proceeding is to be conducted.

5. PRESENTATION OF EXISTING COLLECTIVE RESDRESS TOOLS IN SELECTED EU JURISDICTIONS

A. The Netherlands

In 1994, a collective interest action article was introduced into the Dutch Civil Code (Article 3:305a) under which an interest organization can, in certain circumstances, initiate a collective action for the benefit of the individuals whose interests it protects. However, the wording of this article suggests that a collective action for damages would not be allowed.

There is however another way in which Dutch legislation may be of particular interest in relation to class arbitrations. As mentioned before, US class arbitration tends to deliver settlements. In 2005, the Netherlands incorporated the Dutch Act on collective redress of mass damages ("Wet collectieve afwikkeling massaschade" or "WCAM"), which adds to Article 3:305a of the Dutch Civil Code, by enabling the Court of Appeal in Amsterdam to declare an agreement on mass claims binding, regardless of it being an agreement obtained through litigation on the one hand or arbitration, mediation or negotiation on the other.

So far, six high profile cases have been treated under the 2005 Dutch Act on collective redress of mass damages. The most recent decision of the Amsterdam Court of Appeal in Converium appears to have had an impact on global securities class actions. The court ruled that it had international jurisdiction to approve the settlement for non-US class members, even though the class mainly consisted of non-Dutch class members. In its final decision of January 2012, the court declared the settlement binding on all class members. After the US Supreme Court’s decision in Morrison v National Australia Bank, Ltd. 16 invalidating class actions brought in the US on behalf of foreign class members, Amsterdam may be poised to become increasingly involved in claims involving non-US mass damages.

To date, the only corollary of arbitration under the WCAM is that certain agreements (e.g. certain settlement agreements obtained during arbitral proceedings) may be given class-wide effects by the dedicated judge. The consequences may be far-reaching, as a US class settlement may be converted into a Dutch Judgement, which in turn may be enforceable across the EU on the basis of the Brussels I bis Regulation. 17

The above demonstrates that the Netherlands may serve as an ‘entrance gate’ to the EU, through which US class settlements may be converted into a judgement that could in turn be executed throughout the EU. 18

Besides this, it is worth making reference to Dutch case law demonstrating a thin line between the question of whether the Netherlands allows group arbitration or collective interest arbitration: The Supreme Court (‘Hoge Raad’) of the Netherlands ruled already in 1993 that an association which represents the interests of its members can participate in an arbitration procedure by invoking an arbitration clause that was previously entered into between its members and a third party, if there are certain circumstances that demonstrate a special relation between the association and its members that allow to assume that the arbitration clause should (also) be binding upon the association. 19 One could conclude that this finding amounts to a representative action within the Dutch arbitration forum. The case concerned an association that grouped members in the agricultural sector who used gas to grow crops. A special relationship existed between the association and its members, as it was the association that conducted negotiations with the concerned gas supplier to set out the terms and conditions for gas supply between the supplier and the members of the association. The arbitration clause was contained on those terms and conditions. The Supreme Court clarified that an arbitration clause only binds the party to it and that its ruling does not amount to giving binding effects of the clause towards third parties. The Supreme Court found that the association itself should in this particular case not be considered a ‘third party’ towards its members, provided the special relationship with its members and the fact that it acted merely in the interest of its members. This ruling may create a rather strange interface between the concept of being a ‘party to the arbitration clause’ and the concept of being a ‘party to the arbitration’. Indeed, in the present case the interest association was found to be a party to the arbitration clause, while its members were not themselves individually party to the arbitration proceedings. Consequently, it can be said that, although the Dutch Arbitration Act provides no explicit basis for a representative action within arbitration, such action can be allowed under certain circumstances.

B. Czech Republic

The protection by courts under Czech law is characterized by individualism, as Czech courts decide only on individual rights and obligations of specific individual persons.

Collective redress in the Czech Republic reflects this approach by providing for particular forms of group actions, in which all persons involved are regarded as individual parties to the proceedings, with a full set of rights afforded to such parties:

• Section 91 of the Czech Code of Civil Procedure provides for instance that if there is more than one claimant or respondent in the same matter, then each of them acts on their own behalf in proceedings. However, where the case concerns common rights or obligations of the kind that necessarily entail that the judgment will refer to all parties on one side of the dispute, then acts of any of them also extend to the others. However, modifying or withdrawing motions, recognizing claims, or entering into settlements all require the consent of all parties on one side of the dispute.

• Section 112 of the Czech Code of Civil Procedure provides that in the interest of efficiency, the court may merge several matters initiated before it to hear them in joint proceedings, provided that they concern the same facts or events, or the same parties. If the motion for the initiation of proceedings refers to matters that are unfit for a merger of proceedings, or if the grounds for which certain matters were merged by the court no longer apply, the court may decide to set aside a given matter for separate hearings.

• Consumer rights organizations may only bring actions for injunction, but not for damages. In other words, the right to seek a ruling of compensation is exclusively allocated to individual consumers.

Czech procedural law offsets the consequences of its individualistic approach by providing for a particular application of the principles of litispendence and res judicata, amounting to a truly unique form of collective redress.

Indeed, section 83(2)(a) and (b) of the Code of Civil Procedure was described by Alexander J. BELOHLAVEK to have an effect that

the initiation of proceedings for an injunction or remedy in matters of the protection of rights infringed upon or endangered by unfair competition, or the initiation of proceedings for an injunction in matters of the protection of consumer rights, precludes other litigation against the same respondent in matters of action filed by other claimants who raise the same claims on grounds of the same kind of conduct or the same state of affairs. 20

In other words, in such cases, an obstacle of (enhanced) litispendence has been created in which the (same or different) identity of the claimants will have little relevance.

In addition hereto, section 159a (2) stipulates that the operative part of a non-appealable judgment on the kind of matters referenced in section 83(2) is binding not only upon the parties to the proceedings, but also upon other persons who are entitled persons or beneficiaries vis-a-vis the respondent on the grounds of the same claims (brought about by the same conduct of the respondent, or the same state of affairs). In other words, in addition to the forementioned enhanced litispendence principle, there is also an enhanced res judicata obstacle, precluding that a similar action against the respondent for the same claims brought about by the same conduct or state of affairs would be filed. This means that rulings in the Czech Republic can bind third parties that are in the same position of an entitled person towards the respondent on grounds of the same claims that have arisen from the same conduct or state of affairs.

The later claimant can enter into the earlier procedure (if still pending) as a secondary party (acceding to the claimant’s action) or as an additional party (with all procedural rights, e.g. to file any kind of remedy). Becoming an additional party is however only possible upon request from the original claimant. Moreover, the general public will not be informed of the initiation of proceedings nor of the results of a dispute. On top of this, procedural objections in relation to litispendence and res judicata may even be invoked ex officio by the Czech judge. This all suggests the importance of the first claimant being able to present and defend its claim in a proper way.

Upon service, rulings issued within the arbitration forum have the same effects as court decisions. Arbitration awards therefore also represent the aforementioned obstacles of res judicata. However, arbitrators are in no position to decide on the validity of contracts between certain parties unless each of them is also party to the arbitration procedure. 21 Additionally, Czech consumer claim arbitration requires a separate deed, apart from the document that governs other rights and obligations of the parties.

For these reasons, taking into account the individualistic approach and the de facto limited application of said principles in arbitration, one can conclude that there is only very little room for collective redress through arbitration in the Czech Republic.

C. Denmark

Denmark is one of the exceptions among European jurisdictions that, above an ordinary joinder of claims, also provides for a law on class actions. This Act is embedded within the Danish Administration of Justice Act — hereafter "AJA" and is in force since 1 January 2008. The AJA sets the principle of an opt-in mechanism for class determination, with the possibility for the court to decide that the class action includes all class members not opting out.

However, the Danish Arbitration Act (hereafter "AA") does not include any provision on class arbitration and therefore does not offer any required basis for class arbitration. An arbitration agreement between one or more potential class members and the opposing party may even prevent that the member(s) concerned could opt in to the class action.

The AA does not even include any provision on consolidation of disputes. Consequently, a third party can only be included in the arbitration following cumulative consent from 1) such third party, 2) the parties to the pending arbitration and 3) the arbitral tribunal. The underlying reason for this refers to the consensual nature of arbitration and the legitimate interest of the claimant or respondent, as the case may be, in avoiding a delay or an increase in costs. 22

Moreover, no Danish arbitration institute has adopted procedural rules on class arbitration and it seems that the introduction of class arbitration in Denmark has been given little or no discussion among practitioners, academics and politicians. The reasons likely refer to 1) the consensual nature of arbitration, 2) the fact that class litigation is found more efficient as it also allows addressing tortious acts and 3) the fact that, in line with other European Jurisdictions, consumer arbitration requires the arbitration agreement to be entered into after the dispute has already arisen.

The Danish example demonstrates that collective redress in the form of class action may be reserved to the litigation forum, whereas the parallel arbitration forum only applies a strict individualistic approach.

D. Hungary

The Hungarian legislator takes the view that plaintiffs can share costs of litigation by suing jointly, making it affordable for them to litigate small claims of which the enforcement would otherwise be too burdensome in comparison to the achievable gain.

Instead of introducing class actions, the Hungarian legislator addressed this issue by introducing the so-called actio popularis model. This means that a third party (typically state organs and/or civil organizations) are authorized in legislative acts to initiate legal actions on behalf of a group of persons. Different sets of rules exist in relation to the actiones popularis, depending on the type of claims and sectors. The representing entities have discretionary powers as to whether they initiate a lawsuit and the beneficiary (usually consumers) will automatically enjoy the benefits.

If an affected consumer decides to pursue a claim individually (either parallel or subsequently), the claim will not be dismissed, as the conditions for res judicata have not been fulfilled, due to the different identity of parties. Indeed, public actions are therefore without prejudice to the individual actions. This approach is based on the Hungarian understanding of procedural fairness.

Leading authors believe that representing entities can use alternative dispute resolution methods, such as arbitration, in public actions. 23 There are indeed no grounds for establishing the exclusive jurisdiction of state courts to adjudicate public actions. However, an arbitration clause is required to enable public actions through arbitration.

Regarding arbitration, it must be noted that the Hungarian Arbitration Act grants exclusive jurisdiction to the Arbitration Court attached to the Hungarian Chamber of Commerce and Industry in international matters. Moreover, the Arbitration Act is silent on the issue of class arbitration and no Hungarian arbitration institute provides rules on class arbitration.

Leading authors agree that self-regulated class actions are conceivable in Hungary but the procedural right of individuals to be heard constitutes a serious obstacle to the simplification of the procedure. 24

E. Sweden

Sweden has a Group Proceedings Act (2002:599) since January 2003, making Sweden the first country in the world, outside the common law states, which provided the right to initiate (enhanced) group actions within a court system.

In the Swedish group action the claimant represents a group of individuals and/or legal entities that are not themselves parties to the proceedings, against one or more defendants. Since the group members are not parties to the proceedings, they do not have to appear during the trial. The claims are presented individually, which makes that the representing body may claim differing damages for different members. A ruling on a claim within the group does not automatically create a precedent for the other claims within that group. The judge will therefore render a specific ruling in relation to each group member’s claim. The subsequent court rulings bind the group and group members have the right to appeal. Group procedures are governed by the same procedural rules as conventional legal proceedings.

The Groups Proceedings Act provides conditions regarding the identity of the representing body and does not apply to labour law nor to marketing law, which tend to be important affected sectors in US class actions. The Act may nevertheless be applied for consumer disputes, product liability disputes, insurance disputes, damages for disasters, environmental disputes, etc.

On the subject of arbitration, Swedish courts tend to dismiss an arbitration clause if one of the parties is considered weaker than the other, e.g. in employment disputes. Indeed, the Swedish Supreme Court has ruled that such fairness test is to be applied. 25 Moreover, under Swedish law parties cannot validly enter into an arbitration clause prior to the time the dispute has arisen in consumer claims, labour disputes, disputes involving sex discrimination, right of assembly or ethnic discrimination. In addition, disputes regarding the validity of collective agreements or exemptions from such agreements cannot be settled by arbitrators. This leaves very little scope for class arbitration in Sweden within the current state of law.

F. England

Collective redress in English law and practice can be referred to as representative actions and group actions.

The tradition of representative actions goes back at least as far as the middle of the 18th Century, when the Court of Chancery required the presence of all parties interested in the matter to select a few individuals to represent the rest, so that the right might be fairly decided between all parties in a suit so constituted.

The same principle can be found today in CRP rule 19.6. Tellingly, the rule sets out that the representing parties and those persons represented must have the same interests. The representative proceeding involves a single action, making it unnecessary to assess particular represented persons or their claims. The subsequent decision will apply to all parties and to all represented persons, which poses an exception to the characteristics of a traditional representative action.

Regarding the group action on the other hand, the applicable rules can be found in CPR rules 19.10 — 19.15, requiring a so-called group litigation order (GLO), which comes down to a case management decision enabling the court to manage various separate actions that have already been commenced or are about to be commenced and that raise or are likely to raise the same or similar issues of fact and law.

Regarding arbitration, leading authors believe that there can be no consolidation of arbitrations without the consent of the parties, as the arbitral tribunal in itself has no powers to consolidate arbitrations. 26 Further obstacles to class arbitration in England relate to concerns vis-a-vis the right of each party to have a reasonable opportunity to defend party autonomy and confidentiality. England takes a fundamental view on arbitration as naturally based on consent rather than coercion. These observations urge to conclude that, without legislative change, there is stony ground for the development of class arbitration in England.

Leading authors have stated that

were a tribunal having its seat in England to attempt to certify a class and seek to permit class arbitration along the lines of the AAA supplementary rules or the JAMS procedures, it could in our view be successfully challenged under sections 67, 68 and possibly 69 of the Act (appeals on a point of English law, which are allowed in the absence of a waiver against any such appeals). The only difficulty about doing so is that each of these sections refers to a challenge being made (or in the case of section 69 an appeal being made) by a ‘party to arbitral proceedings’, and of course the challenge or appeal would be made by a person whose case is that he is not a party to any of the arbitral proceedings. But that is addressed by section 72 of the Act, which provides that a person alleged to be a party to arbitral proceedings but who takes no part in the proceedings is fully entitled to challenge any award made against them on the grounds of lack of jurisdiction or serious irregularity, or indeed to question whether there is a valid arbitration agreement which binds them"27 and that "it would be difficult to conceive of any greater threat to the success of English arbitration than the removal of the general principles of confidentiality and privacy.28

What is more, the Unfair Terms in Consumer Contracts Regulations 1999 read together with section 91(1) of the Arbitration Act, makes that an arbitration clause in a consumer contract is considered unfair if the claim is for a modest amount (currently 5000 GBP or less).

During the last decade there has been a lively debate in the UK as to the adequacy of existing collective redress mechanisms. The debate has however been almost entirely focused on judicial remedies and extrajudicial dispute resolution mechanisms such as mediation and conciliation. In proportion hereto, only little reference was made to mass claims in arbitration.

G. France

Recent evolutions in France demonstrate that the introduction of an EU type of class actions is possible even when US-style class actions seem not in line with fundamental principles of law in the jurisdiction concerned. To visualize this, a distinction will be made for France between on the one hand, the perspective on class actions prior to the 2014 French class action law, and on the other hand the perspective applied since the implementation of such law.

The French Perspective on Class Actions Prior to the French 2014 Class Action Law

US-style class actions are fundamentally contrary to basic principles of French procedural law as 1) a member would in principle be considered a party to the procedure unless he or she opts out, and 2) all members of the class would be bound by the class judgment even if they did not receive notice and consequently were not even aware of the pending lawsuit. Indeed, these findings are not in conformity with the principle ‘nul ne plaide par procureur’ laid down in article 31 of the French Code of Civil Procedure. Other obstacles that have prevented the existence of class arbitration in France are the main requirements set for arbitration proceedings, such as the principle of confidentiality, 29 consent to arbitration, 30 different regimes applied to domestic and international arbitration, 31 etc.

Consequently, French collective redress tools do not include class actions but rather take the form of ‘enhanced’ group actions. These enhanced group actions are limited to very specific sectors.

In relation to employment matters, articles L1247-1 and L1251-59 of the French Code du Travail enables workforce representatives to bring certain actions without the need to be empowered by a designated plaintiff. The employee(s) will be informed and may file his or her objection to Court within a set deadline. Every employee concerned therefore keeps control over the procedure and may personally intervene, while maintaining the power to put an end to the procedure.

In relation to consumer matters, articles L422-1 and L422-3 of the French Consumer Code enable the so-called ‘action en representation conjointe’. This action enables associations duly authorized by at least two consumers to start legal proceedings in order to obtain damages on behalf of those consumers. As opposed to US class actions, each consumer’s mandate must be given in writing and the association is not allowed to solicit mandates. 32

French procedural law distinguishes between domestic arbitration and international arbitration. Rules on domestic arbitration are stricter than rules applicable to international arbitration and are subject to greater court review from French courts. 33

In relation to domestic arbitration it must be understood that some matters typically trialled in US class arbitration, such as employment matters and consumer matters, are explicitly excluded from the French arbitration forum.

Regarding disputes between employees and employers, article L1411-4 of the French Code du Travail allocates exclusive competence to the French labour Court (Conseil des Prud’hommes). In case of doubt as to the contract’s characterization, the arbitrator does not even have jurisdiction to determine whether the contract is a labour contract or not, and is therefore deprived from the competence-competence principle. 34

On consumer disputes, article 2061 of the French Civil Code excludes these from the arbitration forum by stipulating that an arbitration clause is only valid in contracts entered into in relation to a professional activity pursued by both parties. The underlying idea is that arbitration clauses in consumer contracts would have an abusive character. This article of the Civil Code tends therefore not to be interpreted in favour of arbitration. 35 It is of course not forbidden to enter into an arbitration agreement with a consumer after the occurrence of the dispute. 36

Moreover, it is clear that domestic class arbitration awards would be considered null and void in general, for various reasons:

First of all, the defendant would be deprived of the possibility to appoint his or her arbitrator for each individual dispute with each class member. 37 Moreover, some class members may not be able to participate in the arbitrator’s appointment. This would violate a fundamental procedural principle regarding the equality of each party in the appointment of the arbitrator. 38 Such principle of equality amounts to French public policy.

Secondly, the principle of an adversarial process is a basic principle of French due process. 39 This requires the procedure to be organized in such way as to ensure that all class members can participate in the adversarial process.

Thirdly, the principle ‘nul ne plaide par procureur’, although not explicitly characterized as part of French public policy, is included in French constitutional rights. 40

As regards international arbitration, a further distinction must be made between the enforcement in France of a class arbitration award rendered abroad (that is addressed in a separate title of this article) and the possibility of organizing a class arbitration in France in an international case. Concerning the latter point, although parties enjoy a large freedom in the choice of the rules or the law applicable to the proceedings and in spite of a relaxation of the principles of arbitrability on matters not governed by French law, the absence of consent of some class members to arbitration and their resulting non-participation in the proceedings pose hurdles that cannot be overcome. 41 Indeed, even the parties’ right to waive the right to annul the award does not provide a solution, as the execution of such right requires a special agreement from the parties and implies their acceptance of the arbitration.

The 2014 French Law on Class Actions

On 18 March 2014 the French law on class actions was adopted following extensive debate within political and academic circles. 42

The law emphasizes on settling mass claims and applies an opt-in mechanism (enabling to opt in only after the liability of the professional has been established) to determine the class members. It further reflects the fore-mentioned concerns through the following restrictions:

• Only consumer associations authorized pursuant to Article L 411-1 of the French Consumer Code may file class actions on behalf of individual consumers;

• Only individual consumers can file damages claims from anticompetitive practices or any breach of contractual or statutory duties against professionals;

• The potential class action claims are limited to remedies for material loss suffered and cannot be used to obtain damages for physical and/or moral loss;

• The Tribunal de Grande Instance has exclusive jurisdiction to hear French class actions.

The French law on class actions may only constitute a form of (enhanced) group action. Practice will demonstrate to what extent the law actually introduces class actions (procedural joinders) in the French jurisdiction.

It seems that the French legislator was open to include only certain types of ADR, such as mediation, and did not involve arbitration.

In light of the above, there is today still no explicit legal basis for class arbitration in France.

6. CLASS ARBITRATION REQUIRES A PROCEDURAL RULE ENABLING PROCEDURAL JOINDERS IN ARBITRATION

The European arbitration practice is nowadays characterized by flexibility and a pro-arbitration stance. Liberal decisions exist in relation to the identification of parties to an arbitration clause allowing a broad and more pragmatic identification of parties through analysis of third-party beneficiaries, incorporation by reference, the existence of a community of rights and interests and theories of implied consent. There is also an evolution taking place on the extension to non-signatories within a group of companies, e.g., towards a parent company, another company of the group, a sister corporation, an employee or even a director or general manager. 43 Moreover, doctrines have been developed such as ‘the group of contracts doctrine’ concerning multiple related contracts that are not linked to the same arbitration agreement and which are entered into by the same parties. 44 In addition, several arbitrators have demonstrated to be in favour of the consolidation of parallel proceedings, e.g. in order to consolidate parties who have participated in the performance of one economic transaction through interrelated contracts. 45

Nevertheless, class arbitration requires more and cannot be obtained by mere liberal doctrines. Indeed, a class action requires a procedural joinder embedded within a procedural rule. The introduction of class arbitration therefore requires explicit legislative intervention providing for a procedural joinder within the arbitration forum.

7. THE ROLE OF THE EU COMMISSION

On 11 June 2013, the European Commission made a recommendation to the EU Member States to adopt a horizontal collective redress mechanism in order for citizens and companies to be able to enforce their rights under EU law. 46 The main motivation grounds would consist in saving litigation costs for citizens and businesses, and time by reducing various individual claims to one single proceeding.

The European Commission suggested in its recommendation a number of procedural rules to which the Member States should adhere and which would include: 1) Introducing an opt-in system in contrast to the US opt-out system with only those claimants participating in the proceeding who actively decided in favour of it; 2) Making the collective redress mechanism available on a horizontal level for different areas of law, such as consumer protection, data protection, competition, etc.; and 3) Excluding contingency fees and punitive damages, usual for the US litigation system.

When these rules would be followed, the European Commission believes that the collective redress mechanism would not violate main legal principles within the EU Member States.

8. RECOGNITION AND ENFORCEMENT OF FOREIGN CLASS ARBITRATION AWARDS

The fact that EU jurisdictions do not, at present, provide for a procedural joinder, enabling class arbitration to take place, does not per se prevent foreign class arbitration awards from being recognized and enforced in European jurisdictions.

Unfortunately, very little case law exists on the recognition and enforcement of foreign class arbitration awards in European jurisdictions.

It is worth mentioning the Vivendi case. 47 In this case, French shareholders of Vivendi Universal SA, the US Claimants, requested before US Courts certification of a class consisting of "all persons, foreign and domestic, who purchased or otherwise acquired ordinary shares or American Depositary Shares (ADS) of Vivendi Universal, S.A". This means that any purchaser of Vivendi stock, including French purchasers, would become a member of the US class action, unless he or she expressly notified a decision to opt out. The New York Southern District Court interpreted French law and ruled on 22 March 2007 that only those French shareholders who had bought shares on the New York stock exchange as well as on the Paris stock exchange, are admitted to the class. 48

In this case the defendants had argued that the opt-out system is contrary to the doctrine ‘nul ne plaide par procureur’, to due process under French law (which requires that one cannot be a claimant without one’s knowledge) and to the principle of an adversarial procedure. They also suggested that the prohibition of contingency fees for lawyers in France is incompatible with class actions. 49

The US Court considered that international public policy was the most problematic issue, since France does not allow opt-out class actions. A contrario it seems that the application of an opt-in mechanism for the constitution of the class enables to conclude that international public policy would not have been affected.

It is unfortunate that this question on French international public order was only answered by the US Court, especially considering that the Paris Court of Appeal was also seized in this case (in 2010) but dismissed the claim by deciding that it had no jurisdiction to rule upon these issues or evaluate the scope of a US class action decision in France. 50 The latter finding may suggest that class actions involving French citizens and providing for an opt-out mechanism would actually not be in violation with French international public policy as the French judge seems to have left freeway to his US colleagues to rule.

In order to determine the potential effects of class arbitration awards in Europe, one should take into account Article V of the New York Convention, which offers exhaustive means to challenge the recognition and enforcement of an award. The main grounds refer to (1) due process (Article V(1)(b)) and (2) public policy (Article V(2)(b)) concerns. The basis for objection found in article V(1)(b) can only be raised by the parties whereas the basis for objection in article V(2)(b) can be raised by the parties or by the court ex officio. 51

Both grounds "must be construed narrowly, they are exceptions to the general rule that foreign awards must be recognized and enforced"52 and "none of the existing objections to enforcement can be interpreted in such a way as to allow opponents to international class arbitration to overcome the New York Convention’s presumption in favor of enforcement". 53

However, different EU jurisdictions may have differing perspectives on due process and public policy. Civil law jurisdictions, as opposed to common law jurisdictions, tend to emphasize the individual nature of legal claims, a reason why in several EU jurisdictions an aversion may exist towards a representative mechanism that ‘disposes’ of the rights of absent class members. This may explain why some courts routinely refuse to enforce US rulings, particularly those arising from class actions. 54

Civil law jurisdictions tend to take the view that claimants should have the right to choose the time and manner of bringing a cause of action, while defendants should have the right to mount a full, individualized defense of all legal and factual claims brought against them. 55 Hereby it is often found that absent class members are not considered to have effectively chosen to exercise their right to a cause of action, even if they could have opted out of the proceedings. Moreover, defendants are often considered to be unable to defend themselves adequately against the generalized claims of absent class members. 56

Civil law traditions also tend to emphasize arbitration being a contractual construction and therefore argue that if the parties to the arbitration did not explicitly agree to be subject to class treatment, it would be improper to proceed as such. 57

Nevertheless, in light of an ongoing pro-arbitration stance, the aforementioned concerns about public policy and due process should not overcome the pro-enforcement presumption of the New York Convention. In this regard the enforcement of class arbitration should be treated in the same way as if the award resulted from a bilateral arbitration, permitted on the basis of the special nature of class arbitration. 58 This makes that even states that oppose representative actions should still enforce class arbitration awards, as arbitration welcomes flexibility, informality and innovation. 59

Consequently, absent class members should be considered as having chosen to exercise their individual rights at such moment and in such manner. This view is in line with the fact that the initial agreement to arbitrate binds the parties to whatever procedure the arbitrator deems proper in his or her discretion, subject only to the parties’ explicit instructions and the application of relevant arbitration rules.

This suggested perspective complies with due process, however admitting that the requirements of due process may not be uniform. 60 Indeed, at a minimum, 61 due process would require that parties be provided with a reasonable notice and an opportunity to be heard. Both conditions can certainly be met within class arbitration.

This suggested perspective also complies with public policy, as the underlying rationale to public policy is the right of a State and its courts to exercise ultimate control over the arbitration process, 62 reason why public policy is a fluid concept changing according to the needs of society. 63 It was therefore described as "violations of basic notions of morality and justice"64 and as the "fundamental economic, legal, moral, political, religious, and social standards of every state or extra-national community". 65 Class arbitration as such does not constitute a violation of public policy. 66

9. CONCLUSIONS

EU policymakers currently do not attribute a significant role to class actions and do not look at the arbitration forum for the resolution of mass claims, even when the claim is a contractual one involving claims under a series of similar contracts raising similar issues, each containing an enforceable arbitration agreement.

Instead, as demonstrated by a paper published in 2010, entitled "Collective Redress in Europe: The New Model", 67 Professor Christopher Hodges has pointed out the rejection of the US model of class action and the gradual development in European jurisdictions of a new model. Such a new model would involve collective ADR with focus on a negotiated voluntary settlement, backed up by the involvement of public enforcement authorities, which can play a significant role in facilitating or delivering collective redress. This latter element was described by him as a "regulatory oversight".

The US class arbitration practice demonstrates high settlement rates, suggesting that arbitration can certainly fulfil a useful role in guiding mass claims to negotiated voluntary settlements. The US practice also validates the importance of arbitration institutes setting out rules on class arbitration, which currently does not exist in Europe.

Class arbitration will not, however, develop merely through practice as it requires a legal basis through legislative intervention explicitly providing for a procedural joinder within the arbitration forum. Currently such a basis does not exist anywhere in Europe.

Moreover, the pro arbitration stance and the flexible characteristics and doctrines in relation to arbitration do not suffice to enable first class arbitrations taking place in Europe, not even through an opt-in mechanism. It is also uncertain to what extent a valid class arbitration could take place in Europe if merely based on the procedural rules agreed upon by the parties, as such ‘consensus’ may be questionable in relation to non-participating class members.

1
For a detailed analysis, see P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration IVZW (co-editor), 2013, Maklu, 241 p.

2
Thomas D. Rowe, Jr., A Distant Mirror: The Bill of Peace in Early American Mass Torts and Its Implications for Modern Class Actions, Arizona Law Review, Vol. 39:711, at p. 711 and subseq.; Zechariah Chafee, Jr., Bills of Peace with Multiple Parties, 45 Harv. L. Rev. 1297 (1932) and others.

3
Keating v Superior Ct., 645 P.2d 1192, 1209-10 (Cal. 1982), Southland Corp. v Keating, 465 USUS 1 (1984): this was one of the first class arbitration cases in the USUS history.

4
Abaclat and Others v Argentine Republic, ICSID case, No. ARB/07/5: claim filed by around 200,000 Italian claimants against the Republic of Argentina; Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA case No. AA 227: claim filed by shareholders of the Yukos oil company against the Russian Federation.

5
Strong, SI, From Class to Collective: The De-Americanization of Class Arbitration, LCIA, Arbitration International, Vol. 26, Is. 4, p. 494-495; Renate Dendorfer, ADR and Arbitration Compromise or Development in Corporate Disputes, CILS Symposium on Arbitration, Mediation and ADR (June 2010, Austria), at p. 10.

6
Gary B. Born, International Commercial Arbitration (2009), p. 1231-1232; Jeffrey S. Leon et al., Class Arbitrations in Canada: the Business Case (2010) Canadian Class Action Review, vol. 6; Strong, SI, Class Arbitration Outside the United States: Reading the Tea Leaves’ in Bernard Hanotiau and Eric A. Schwartz (eds.), Dossier VII: Arbitration and Multiparty Contracts (2010) and other authors.

7
Linklaters, Collective actions across the globe — a review, 2011, available at: http://www.linklaters.com/pdfs/mkt/london/1103_Collective_actions.pdf

8
W. Mark C. Xeidemaier, Arbitration and the Individuation Critique, 49 Ariz. L. Rev. 69, 70 (2007).

9
See the extended AAA’s class arbitration case docket on: https://www.adr.org/ aaa/faces/services/disputeresolutionservices/casedocket;jsessionid=ja9wuvhZ oHlQ1uXA-ChOVlxi-bDpsft9jsr7u9Ig2TKZSHTTLEHY!1081756379?_ afrLoop=755508557901180&_afrWindowMode=0&_afrWindowId=null#%40%3F_ afrWindowId%3Dnull%26_afrLoop%3D755508557901180%26_ afrWindowMode%3D0%26_adf.ctrl-state%3Ddj902fi22_4

10
Once the arbitrator decides whether the arbitration should proceed as a class, he issues the class determination award, which is a reasoned partial award. If class arbitration is to proceed, this award shall define the class, identify the class representative(s) and counsel, describe the mode of delivery to class members, describe when and how members of the class may be excluded and shall set forth the class claims, issues, or defenses.

11
Connecticut General Life Insurance Co. v Sun Life Assurance Co. Of Canada a.o., 2010 F. 3d 771, NOS.99-4085, 99-4106 (7th Cir. 2000); Dickler v Shearson Lehman Hutton Inc., 596 A. 2d 860 (Pa. Super. 1991).

12
JAMS class certification requires satisfaction of rules that, like the AAA’s Rules, are based on Rule 23 of the Federal Rules of Civil Procedure.

13
EU’s Consultation Paper "Towards a Coherent European Approach to Collective Redress" :http://ec.europa.eu/dgs/health_consumer/dgs_consultations/ca/ collective_redress_consultation_en.htm

14
Directive 2013/11/EU of the European parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) and Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/ EC (Regulation on consumer ODR). See also: C. Hodges, I. Benöhr and N. Creutzfeld-Banda, Consumer ADR in Europe: Civil Justice Systems (2012), C.H. Beck-Hart-Nomos, First edition.

15
Case C-168/05, Elisa Maria Mostaza Claro v Centro Movil Milenium SL.

16
Morrison v National Australia Bank, 561 USUS 247 (2010)

17
Council Regulation (EC) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).

18
Philippe Billiet and Laura Lozano, Class Actions and Arbitration in Belgium and The Netherlands, in P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 223-233.

19
Hoge Raad, 1 July 1993, nr. 15016, LJN : ZC1028.

20
Alexander J. Belohlavek, Class Actions and Arbitration Procedures — Czech Republic, in P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 49-70.

21
See, for instance, interim arbitral award Rsp 981/11 handed down in an arbitration procedure before the Arbitration Court attached to the Economic Chamber of the Czech Republic and the Agricultural Chamber of the Czech Republic. Annotated by: Růžička, Květoslav, in: Bělohlávek, Alexander and Rozehnalová, Naděžda, CYArb — Czech (& Central European) Yearbook of Arbitration. Huntington (New York): JurisNet, 2012, Vol. II. The said decision, e.g. states, inter alia (citing from the abovementioned annotation): "A final (nonappealable) arbitral award has the same effects as a non-appealable judgment by a [general] court. However, with a few specific exceptions [that need not interest us in the present case], an arbitral award is a decision whose effects are limited to the parties (inter partes effects). [...] The arbitrators are not in a position to pass any decision that affects the rights and obligations of a third party".

22
Jakob Juul and Peter Faurholdt Thommesen Voldgiftsret p 225 (2nd edition) (2008) Thomson and Hakun Djurhuus, Christian Lundblad, Steffen Pihlblad and Claus Sogaard-Christensen Praktisk voldgiftsret p 46 (2011) DJOF.

23
Laszlo Kecskes and Lajos Wallacher, Class Actions and Arbitration Procedures — Hungary, in Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 87-113.

24
Laszlo Kecskes and Lajos Wallacher, Class Actions and Arbitration Procedures — Hungary, in Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 87-113.

25
Judgment June 12, 1981, Supreme Court, case No Ö 1106/79 (NJA 1981 p. 711) and Judgment June 28, 1983, Supreme Court, case No Ö 375/82 (NJA 1983 p. 510).

26
Ian Hunter and Louis Flannery, Class Action and Arbitration Procedures — United Kingdom, in P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 185-221.

27
Ian Hunter and Louis Flannery, Class Action and Arbitration Procedures — United Kingdom, in P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 185-221.

28
Ian Hunter and Louis Flannery, Class Action and Arbitration Procedures — United Kingdom, in P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 185-221.

29
Art. 1464 of the CPC: confidentiality of an arbitration proceeding is one of the main features of arbitration and the reason why parties choose it over other means of dispute resolution. In contrast to a confidential arbitration proceeding, a class action would have to be made public, as it involves per se interests of a certain class of claimants, which would in the end contradict the principle of confidentiality.

30
It is hard to establish unilateral consent of a certain class of claimants to arbitration, as they are usually parties to different contracts with different arbitration clauses or are not even aware of a class arbitration proceeding taking place.

31
Guido Carducci, The Arbitration Reform in France: Domestic and International Arbitration Law, Arbitration International, Kluwer Law International 2012, Vol. 28, Issue 1, at p. 147: The difference between domestic and international arbitration means that domestic arbitral awards would be much more controlled by French courts rather than international ones. However, both kinds of arbitration would still have to comply with conditions of French procedural law, set out for arbitral proceedings. Thus, class action would likewise be unacceptable for international arbitration.

32
Cass. Civ. 1re 26 mai 2011, n°10-15-676, Assoc. Union fédérale des consommateurs- Que choisir v SA société Bouygues Telecom, commentary by Anne Debet, « Interdiction pour une association de consommateurs de solliciter un mandat pour agir en justice par le biais d’un site Internet », Communication Commerce électronique n°9, Sept. 2011, comm. 77. See also: Cass. Civ 1re, September 30, 2008, Pourvoi n°06-21.400, Decision n°909, Société Class action. fr.

33
Guido Carducci, The Arbitration Reform in France: Domestic and International Arbitration Law, Arbitration International, 2012 Volume 28 Issue 1, p.147.

34
Cass Soc, November 30, 2011, claim n°11-12905. See also: Eric Borysewicz et Gilles Jolivet, Arbitrage et droit du travail : le principe compétence-compétence n’est pas applicable en matière prud’homale, Alerte Jurisprudence, 13.12.2011.

35
Cass. Civ. 1re, February 29, 2012, claim n°11-12782, commentary by Joël Monéger, Activité professionnelle des parties et clause compromissoire, La semaine Juridique Entreprise et Affaires n°19, May 11, 2012, 1314.

36
Cass. 1re civ., February 25, 2010, claim n°09-12126, commentary by Anne Pélissier, Le compromis d’arbitrage n’est pas une clause abusive , La semaine Juridique Edition Générale n°24, June 14, 2010, 659 .

37
Gabrielle Nater-Bass, Class Action Arbitration: A New Challenge? ASA Bulletin, 2009, Vol.27/4, p.684.

38
Cour de Cassation, Judgment of January 7, 1992, Rev. arb. 1992, p. 470 and English translation is available in 18.Y.B. Com. Arb. 140 (1993). See also: Ricardo Ugarte & Thomas Bevilacqua, Ensuring Party Equality in the Process of Designating Arbitrators in Multiparty Arbitration : An Update on the Governing Provisions, Journal of International Arbitration 27 (1), 2010, p.11.

39
Yves Derains and Aurore Descombes, Class Action and Arbitration inthe European Union — France, in P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 29-47.

40
Conseil Constitutionnel, July 25, 1989, decision n°89-257 DC. See also : Agnes Viottolo, Margaux Nectoux, Actions collectives : quel avenir pour les "class actions"?, Les cahiers Lamy du CE- 2011100 ; Jacques Lemontey, Les "class actions" américaines et leur éventuelle reconnaissance en France , JDI N°2/2009, p.553.

41
Yves Derains and Aurore Descombes, Class Action and Arbitration inthe European Union — France, in P. Billiet, Y. Derains, B. M. Cremades, G. Crespi Reghizzi, I. Hunter, L. Flannery, J-M Judice, L. Kecskes, H. Bagner, A. J. Belohlavek, S. Ribbeklint, P. Ewerlöf, J. Skadhauge, L. Wallacher, R. Cortes, A. P.P. Monteiro, A. Descombes & M. Dragoni in Class arbitration in the European Union, Philippe Billiet (editor) & Association for International Arbitration (AIA) (co-editor), 2013, Maklu, 241 p., pp. 29-47.

42
Loi du 17 mars 2014 relative a la consommation (Loi Hamon).

43
B. Hanotiau Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues, Kluwer Law International, Journal of International Arbitration 18 (3); 251-360, 2001.

44
These contracts are entered into by the same parties, as opposed to class arbitration where different parties entered into the multitude of independent contracts without there being any economical and/or operational link existing between the members. The members of a class generally do not even know each other. See: Fernando Mantilla-Serrano, Multiple parties and multiple contracts : divergent or compatible issues?, in Multiparty Arbitration, edited by Bernard Hanotiau and Eric A. Schwartz, Dossiers VII ICC Institute of World Business Law, 2010, p. 13.

45
B. Hanotiau Problems Raised by Complex Arbitrations Involving Multiple Contracts-Parties-Issues, Kluwer Law International, Journal of International Arbitration 18 (3); 251-360, 2001.

46
Available at: http://europa.eu/rapid/press-release_MEMO-13-530_fr.htm and http://europa.eu/rapid/press-release_IP-13-525_en.htm.

47
J.F. Dubos, F. Crépin, Affaire Vivendi.- Quand le juge américain s’érige en défenseur de la souveraineté judiciaire française, La semaine Juridique Edition Générale n°36, 5/09/2011, 944 ; J.P. Grandjean, Class Actions américaines et ordre public français, Les Echos n°20613 du 11 février 2010, p.13 ; Blake Redding, If Class Actions Do Not Come To The French, The French Can Go to Class Action, RDAI/IBJL, N°3, 2007, pp.351 s.

48
Trib. Fed. New York Southern District, Decision March 22, 2007, Vivendi Universal, S.A. Sec. Litig., 242 FRD 76.

49
Pursuant to article 10 of the law dated July 10, 1991 and to article 11.3 and 21.3.3 of the RIN, the "pacte de quota litis" is prohibited. The fees shall partially be determined depending on the result, and any agreement settling success fees only, would be null and void. However, such prohibition seems not to apply to foreign lawyers (CA Paris, June 25, 1981, Gaz. Pal 1982, 1, somm. 9.) and not to be contrary to international public policy (Civ. 1er, February 28, 1984, Rev. crit. DIP 1958, 131, commentary by E. Mezger.) to the extent that such remuneration is not abusive (CA Paris, July 10, 1992, D. 1992, 459, commentary by Jarrosson). See also: Henri Ader/ André Damien, Regles de la Profession d’Avocats, Dalloz Action, 2008-2009, paragraph 46.27, pp. 423-424.

50
CA Paris, April 28th, 2010, Rôle: 10/01643.

51
Troy L. Harris, The "Public Policy" Exception to Enforcement of International Arbitration Awards Under the New York Convention: With Particular Reference to Construction Disputes, 24 J. Int'l Arb. 10 (2007).

52
Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration, paras. 10-33 to 10-34 (4th ed. 2004), noting that the grounds for objections to enforcement set out in article V of the New York Convention are "exhaustive". See also: D.M. Julian. Lew et al., Comparative International Commercial Arbitration, para. 26-66 (2003).

53
Strong, SI, Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns (2008). University of Pennsylvania Journal of International Law, Vol. 30, No. 1, 2008; University of Missouri School of Law Legal Studies Research Paper No. 2009-01. Available at SSRN: http://ssrn.com/ abstract=1330611 (p. 55).

54
Ilana T. Buschkin, Note, The Viability of Class Action Lawsuits in a Globalized Economy–Permitting Foreign Claimants to Be Members of Class Action Lawsuits in the USUS Federal Courts, 90 Cornell L. Rev. 1563, 1566 (2005); Richard H. Dreyfuss, Class Action Judgment Enforcement in Italy: Procedural "Due Process" Requirements, 10 Tul. J. Int’l & Comp. L. 5, 6-7 (2002) (discussing Italian courts’ close scrutiny of American class action judgments); Michele Taruffo, Some Remarks on Group Litigation in Comparative Perspective, 11 Duke J. Comp. & Int'l L. 405, 415–17 (2001) (outlining grounds for European resistance to American-style class actions). See also: 519 F.2d 974, 996–97 (2d Cir. 1975) (admitting affidavits from practitioners from the United Kingdom, the Federal Republic of Germany, Switzerland, Italy, and France stating that courts in those jurisdictions would not enforce judgments resulting from American class actions).

55
Strong, SI, Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns (2008). University of Pennsylvania Journal of International Law, Vol. 30, No. 1, 2008; University of Missouri School of Law Legal Studies Research Paper No. 2009-01. Available at SSRN: http://ssrn.com/ abstract=1330611 (p. 9).

56
Richard H. Dreyfuss, Class Action Judgment Enforcement in Italy: Procedural "Due Process" Requirements, 10 Tul. J. Int'l & Comp. L. 5, 14 (2002) (discussing Italian courts’ close scrutiny of American class action judgments) and Michele Taruffo, Some Remarks on Group Litigation in Comparative Perspective, 11Duke J. Comp. & Int'l L. 405, 415–17 (2001) (outlining grounds for European resistance to American-style class actions).

57
W. Laurence Craig, Some Trends and Developments in the Laws and Practice of International Commercial Arbitration, 30 Int’l L. J. 1, 8 (1995) (stating "designed as a system of private justice, arbitration is a creation of contract"); Thomas J. Stipanowich, Arbitration and the Multiparty Dispute: The Search for Workable Solutions, 72 Iowa L. Rev. 473, 476 (1987) (noting "arbitration is . . . a creature of contract").

58
Strong, SI, Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns (2008). University of Pennsylvania Journal of International Law, Vol. 30, No. 1, 2008; University of Missouri School of Law Legal Studies Research Paper No. 2009-01. Available at SSRN: http://ssrn.com/ abstract=1330611. See also: D.M. Julian Lew et al., Comparative International Commercial Arbitration para. 16-1 (2003) ("There is a general tendency to presume that arbitration involves only two parties.")

59
Strong, SI, Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns (2008). University of Pennsylvania Journal of International Law, Vol. 30, No. 1, 2008; University of Missouri School of Law Legal Studies Research Paper No. 2009-01. Available at SSRN: http://ssrn.com/ abstract=1330611, P. 64.

60
Judith O’Hare, The Denial of Due Process and the Enforceability of CIETAC Awards Under the New York Convention: the Hong Kong Experience, 13 J. Int'l Arb. 179, 184 (1996) (discussing the waiver of due process rights in Hong Kong); Troy L. Harris, The "Public Policy" Exception to Enforcement of International Arbitration Awards Under the New York Convention: With Particular Reference to Construction Disputes, 24 J. Int'l Arb. 9, 11, 16 (2007) (noting that public policy arguments can vary depending on the basic notions of morality and justice in forum states); Gabrielle Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J. Transnat’l L. 1313, 1321–1322 (2003) (noting the harmonization of due process "across national arbitration regimes").

61
Maureen A. Weston, Universes Colliding: The Constitutional Implications of Arbitral Class Actions, 47 Wm & Mary L. Rev. 1770 (2005–2006) and Mullane v Cent. Hanover Bank & Trust Co., 339 USUS 306, 314 (1950) (stating that notice reasonably calculated to inform parties of pendency of action is fundamental to due process).

62
D.M. Julian Lew et al., Comparative International Commercial Arbitration, para. 26-114 (2003).

63
D.M. Julian Lew et al., Comparative International Commercial Arbitration, para. 24-114 (2003) and Karl-Heinz Böckstiegel, Public Policy and Arbitrability, in Comparative Arbitration Practice and Public Policy in Arbitration 177, 179 (Pieter Sanders ed., 1986).

64
International Law Association, Final report on public policy as a bar to enforcement of international arbitral awards (2002).

65
P.B. Carter, The Role of Public Policy in English Private International Law, 42 Int'l & Comp. L. Q. 1, 7 (1993). See also: Deutsche Schachtbau-und Tiefbohrgesellschaft m.b.H. v Ras Al Khaimah Nat’l Oil Co. [1987] 2 Lloyd’s Rep. 246, 254.

66
Strong, SI, Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns (2008). University of Pennsylvania Journal of International Law, Vol. 30, No. 1, 2008; University of Missouri School of Law Legal Studies Research Paper No. 2009-01. Available at SSRN: http://ssrn.com/ abstract=1330611.

67
(2010) 7 Civil Justice Quarterly 370.