The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England: A Rebuttal of Vivendi

Abstract

United States' courts have proven willing to certify multi‐jurisdictional class actions which purport to adjudicate the claims of both American and foreign (i.e., non‐US‐domiciled) class members. This article contends, however, that a class actions judgment/settlement issued by a US court would not be recognised, and would not be given preclusive effect, in England, should absent English class members wish to re‐litigate the same grievance before an English court. Specifically, it is argued that two separate preconditions for such recognition and preclusive effect would fail, viz, a US court would usually lack the requisite ‘personal jurisdiction’ over absent English class members; and the necessary ‘identity of parties’ would be absent. The article seeks to anticipate the appropriate answer to a conundrum which is certain to arise for future English judicial consideration, whilst acknowledging the uneasy fit which currently exists between English private international law and multi‐jurisdictional class actions.

A Channel Apart: Why the United Kingdom has Departed from the European Commission’s Recommendation on Class Actions

“…However, the author strongly disagrees with that view, for reasons expressed elsewhere. 165 The certainty (in this author's opinion) that a judgment or settlement reached in any 'global class action' issued by a North American court, which purported to bind absent English class members who had not opted out, would not be recognised by an English court nor be given res judicata (preclusive) effect in England, exacerbates the lack of redress available to those English class members.…”