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Since the mid-1990s most Australian jurisdictions have adopted, either through subordinate legislation or through internal government directives, rules regarding how government agencies should behave when participating in litigation. While these rules met an immediate need associated with the outsourcing of legal work to private law firms, this chapter argues that they are unsuited for enduring use: they lack a proper rationale, they are poorly worded and uncertain in their meaning; it is unclear whether and how courts should enforce them, and they have not been reviewed to take account of the more recent developments in civil procedure.

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

The Bureau of Economics in the Federal Trade Commission has a three-part role in the Agency and the strength of its functions changed over time depending on the preferences and ideology of the FTC’s leaders, developments in the field of economics, and the tenor of the times. The over-riding current role is to provide well considered, unbiased economic advice regarding antitrust and consumer protection law enforcement cases to the legal staff and the Commission. The second role, which long ago was primary, is to provide reports on investigations of various industries to the public and public officials. This role was more recently called research or “policy R&D”. A third role is to advocate for competition and markets both domestically and internationally. As a practical matter, the provision of economic advice to the FTC and to the legal staff has required that the economists wear “two hats,” helping the legal staff investigate cases and provide evidence to support law enforcement cases while also providing advice to the legal bureaus and to the Commission on which cases to pursue (thus providing “a second set of eyes” to evaluate cases). There is sometimes a tension in those functions because building a case is not the same as evaluating a case. Economists and the Bureau of Economics have provided such services to the FTC for over 100 years proving that a sub-organization can survive while playing roles that sometimes conflict. Such a life is not, however, always easy or fun.

In order to succeed in an action under the Equal Pay Act 1970, should the woman and the man be employed by the same employer on like work at the same time or would the woman still be covered by the Act if she were employed on like work in succession to the man? This is the question which had to be solved in Macarthys Ltd v. Smith. Unfortunately it was not. Their Lordships interpreted the relevant section in different ways and since Article 119 of the Treaty of Rome was also subject to different interpretations, the case has been referred to the European Court of Justice.

The Equal Pay Act 1970 (which came into operation on 29 December 1975) provides for an “equality clause” to be written into all contracts of employment. S.1(2) (a) of the 1970 Act (which has been amended by the Sex Discrimination Act 1975) provides:

The Howard Shuttering Contractors case throws considerable light on the importance which the tribunals attach to warnings before dismissing an employee. In this case the tribunal took great pains to interpret the intention of the parties to the different site agreements, and it came to the conclusion that the agreed procedure was not followed. One other matter, which must be particularly noted by employers, is that where a final warning is required, this final warning must be “a warning”, and not the actual dismissal. So that where, for example, three warnings are to be given, the third must be a “warning”. It is after the employee has misconducted himself thereafter that the employer may dismiss.

In recent years, the European Commission and various Member States, citing increasingly integrated markets and higher levels of cross-border activity within the European Union (“E.U.”), have called for the adoption of effective collective redress mechanisms for victims of violations of E.U. law. Although many Member States have already adopted collective action procedures under national law, these procedures have been ineffective in stimulating private enforcement of E.U. law and are often divergent in their approach to consolidating claims. E.U. lawmakers, after a lengthy period of investigation and study, have identified a set of guiding principles for the Member States to use in enacting new collective redress procedures within their national systems. The studies and papers solicited from the public during the Commission’s deliberations are explicit in their rejection of the U.S.-style opt-out class action mechanism. In their effort to avoid similarly calamitous results, European lawmakers propose that Member States adopt “opt-in” class actions, while rejecting many of the economic incentives that some believe lead to filing nonmeritorious claims, such as punitive damages and contingency fee arrangements. The European proposal is unlikely in the authors’ view to stimulate private enforcement of European law or increase victims’ access to compensation, given the flaws inherent in the opt-in class action device. Instead of looking to adopt a “U.S.-lite” approach to victim redress which is fundamentally incompatible with many judicial systems within the E.U., the authors propose that Europeans consider adopting a regulatory administered compensation system, modeled after such U.S. examples as the Securities and Exchange Commission Fair Funds and the September 11th Victim Compensation Fund. The authors also propose that regulatory administered funds can provide more effective and efficient restitution to victims than traditional litigation.

Drawing on “Strategic Alliance” literature and qualitative research methods, the purpose of this study is to examine the initiation and operations phases of the relationship between Australian litigation funders and class law firms. The initiation phase examines factors such as complementarity between needs and assets compatibility between the funder and the class law firm goals of the alliance trust and alliance structure. The operations phase considers factors such as governance, communication and risk management and accountability. Because of its focus on the fairness of settlement, case law provides limited understanding of the drivers of the class law firm and funder relationship. An “inside look” of how the funder-law firm is initiated and made operational provides a more accurate picture and has important implications for the management of the ethical issues that arise during the course of that relationship.

This paper is a content analysis and contains qualitative interviews.

The strategic alliance between class law firms and litigation funders has evolved within an institutional climate that has acknowledged the benefits that the alliance can bring to the conduct of class actions. That same institutional environment has led to an alliance which is informal and transactionally oriented, where each of the parties maintains a demarcation in function. Although they share aspects of the strategic management of class actions, funders continue to be diligent monitors of class law firms, and class law firms continue to advance the legal rights of class members.

It is observed that the size of the sample is small driven by a number of market participants.

The paper confirms that the litigation funder–law firm strategic alliance works well as a result of institutional constraints.

Each of the alliance partners was keen to ensure that neither they nor their partner acted in a way which might attract judicial disapproval. Each also believed that they played a positive role in promoting class member interests, albeit that their primary motivation was to earn fees or a commission. The success of the alliance between class law firms and litigation funders has substantially improved access to justice in Australia for small claims holders.

The paper provides insight into a strategic alliance which is formed primarily for the benefit of third parties. This is one of the first papers to consider the litigation funder–law firm relationship through the lens of strategic alliance literature.

All clients are to some extent subject to their attorney's construction of their interests. This state of affairs reaches the extreme in the case of the class action because the class action permits masses of individual claims to be combined in one proceeding to promote efficiency and solve collective action problems. Class action scholars have long debated the role of class members without conclusion. The doctrine on whether and when the class member is considered a “party” to the litigation is incoherent. Neither courts nor commentators are clear on limits of the ethical duty of class counsel – does it run to individual class members or to the class as a whole? And if such a duty runs to the class as a whole, is the class an entity, like a corporation, or an aggregation of individuals each of whom is entitled to enforce class counsel's attorney–client obligations?

Knight's Industrial Law Reports goes into a new style and format as Managerial Law This issue of KILR is restyled Managerial Law and it now appears on a continuous updating basis rather than as a monthly routine affair.