Nagareda on the Globalization of Aggregation

Richard Nagareda (Vanderbilt) has just posted a promising article on SSRN entitled “Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism.”  Here is the abstract:

This article analyzes the emergingphenomenon of trans-Atlantic civil litigation on an aggregate basis -chiefly, though not exclusively, by way of class actions. Europeansystems have shown a growing receptiveness for aggregate litigation,but treatments of this development have consisted largely ofdescription. This article offers an analytical framework with which toanticipate the structural dynamics of transnational aggregatelitigation in the twenty-first century.

Simplyput, these structural dynamics will tend to recreate the difficultiesseen in the context of nationwide class action litigation within theUnited States. The nationalization of US commerce led to aggregatelitigation of a commensurately national scope. The result, however, wasregulatory mismatch – for the scope of aggregation to expand to matchthe scope of the disputed nationwide activity, rather than thejurisdictional sovereignty of the forum. The globalization of commerce,coupled with the very multiplicity of approaches to aggregatelitigation seen today, has a considerable tendency to replicate thesemismatches – now, with international proportions. The recent Vivendisecurities class action in the United States and the pathbreaking RoyalDutch Shell settlement under the 2005 Dutch collective settlement actconfirm this trend.

The article then analyzes the vehicles bywhich to address regulatory mismatches. Here, too, the US experience isinstructive, underscoring both the centrality and the limitations ofthe two vehicles by which to achieve a kind of de facto, informalgovernance: the principles for transnational claim preclusion and thelatitude available for private contracts to shift disputes fromlitigation to arbitration.

ADL