Carlos Andrés Domínguez compares litigations in different legal environments: USA, Chile and Spain. He addresses the political connotations of implementing and developing collective actions within civil procedural law.
27 december 2018
Title: Collective actions. Comparative analysis and perspectives in Chile.
Author: Carlos Andrés Domínguez Scheid
Civil procedural law in the 21st century must face massive litigations. The traditional procedure has been exceeded by mass society. One of the solutions for mass litigation are Class Actions of US Law. This legal system allows that an individual can start a procedure for personal benefit and for anyone being in his legal position. The history of this institution dates back to English early medieval law.
During the 20th century, Class Actions were widely used in the 1960s, especially in favour of civil rights. Although they are currently in use, their field of action has been partially reduced.
This type of action is an essential procedural tool to expand the access of individuals to the justice system. In the modern society, alleged damages exceed the control of the traditional continental legal system. By means of class actions, massive alleged damages can be prosecuted and no longer can go unpunished.
It should be pointed out that the focus of the discussion is the lawyers’ bad practices and not the abusive conducts
The institutions of the civil procedure are also crosswise analysed in the study. Active legitimization, the effects of the sentence, the ability of the courts, system of legal costs.
Class actions also receive criticism. The strongest ones argue that they are destroying the democratic creation of laws. Others indicate aspects such as the salaries of the lawyers that go to law.
The aspects that criticise class actions are not exclusive of them. In fact, they can be objected in any area of procedural law. The argument that class actions are used to enable unfounded or malicious accusations in order to blackmail the defendant can be also argued in any other type of legal actions. Bad practices of lawyers cannot be attributed exclusively to class actions. It is remarkable that the discussion focuses on the bad practices of attorneys and not the abusive conducts, which are the main basis of class actions. Actually, there is a great amount of legal literature that explain the litigant’s abuses using class actions but it indicates that any institution of the procedure can be misused. Precisely it is the point of the procedure, solving conflicts and controversies in which the courts are in charge of determining if the ambitions are well-founded. It is not a study that can be conducted a priori, dismissing motivation of this type of ambition.
Class actions are the most political issues of civil procedural law
They are known as acciones colectivas in Chilean Law. They are also known as acciones colectivas in Spanish Law. However, this year a draft directive of the European Parliament has been presented naming them acciones de representación.
The argument that Class Actions are exclusive of Common Law and therefore cannot be accommodated in continental law systems needs a restatement. The distinction between continental European Law and English Law needs a new perspective. Both laws merge from Roman Law, which formulated to legal concepts that are present in both legal traditions. There is a common procedure that regulates class actions at a federal level in the United States. The US Federal Legal Civil Procedure Law has the same content as the Spanish and Chilean Civil Procedure Laws. They differ in terms of their sources, but the matters are similar. Regarding the damages, we have already covered how they are regulated by the Californian Civil Code. There is no reason whatsoever to argue that this type of damage is unconnected to codified law.
Class actions are the most political aspect of civil procedural law. No other field of Law shows such as fierce debate, having legal positions siding with political ones. If this procedural mechanism has given access to justice to the social sectors with the lowest incomes, promoting its use is the most consistent position in terms of respecting the dignity of people and the Human Rights.
