Contratto ImpresaEuropa - Cedam

DIBATTITI 635
is, accordingly, possible that the English courts would conclude that there
was sufficient privity of interest to bind those absent claimants ( 80 ). However,
it should be reiterated that this point would only become relevant if
the English courts were first to conclude that they should apply their rules
of jurisdictional competence to claimants at all.
(D) If a natural justice argument could, in principle, be asserted by the
claimant, would it be sustained by an English court?
Doubt surrounds the question of whether an absent claimant in a US
class action could object to the recognition of the US judgment on the
grounds of breach of natural justice. This defence has developed to protect
the position of defendants rather than claimants. Even if it were the
case that a natural justice argument could be made by an absent claimant
in the US action in subsequent proceedings in England in response to a
res judicata defence asserted by the defendant, it does not follow that this
would be made out on the facts of any given case. The leading private international
law commentators in England recognise that the natural justice
defence is narrowly construed and that examples of its successful establishment
are very few and far between.
In this respect, there is a convincing argument that a US class action
judgment would not normally amount to a denial of substantial justice in
the eyes of English law. Unlike in Adams vs. Cape Industries ( 81 ), there will
normally be no suggestion of a lack of procedural proprietary in the US
courts. Notice will usually be provided to the absent class members in the
class action and that they will be informed of their right to opt out, in
clear language, using a number of different media. Indeed, it has been observed
that « If the foreign class members do not receive adequate notice,
they cannot be bound to the class settlement or final judgment, because
binding them without proper notice would violate their due process
rights » ( 82 ).
( 80 ) See also the recent discussion of this issue in Canada: Bank of Montreal vs. Mitchell
(1997), 143 DLR (4th) 697 (Ont Gen Div [Commercial List]), at p 739, aff'd (1997), 151 DLR
(4th) 574 (Ont CA.); Banque Nationale de Paris (Canada) vs. Canadian Imperial Bank of
Commerce (2001), 52 O.R. (3d) 161 (Ont CA); Shaw vs. BCE Inc [2004] OTC 28 (Ont SCJ), aff'd
(2004) 189 OAC 9 (Ont CA); Parsons vs. McDonald’s Restaurants of Canada Ltd 250 DLR
(4 th ) 224 (2005) (Ont CA), paras 44-51.
( 81 ) [1990] Ch. 433.
( 82 ) Buschkin, The Viability of Class Action Lawsuits in a Globalized Economy- Permitting
Foreign Claimants to be Members of Class Action Lawsuits in the US Federal Courts