CLASS ACTION WAIVER CLAUSE
Creators: name: CURTI, ADRIANO
Publisher: name: Universit� degli Studi di Milano
Year: 2020

description: This paper deals with arbitration clauses and class action waiver clauses inserted in consumer contract forms. Both clauses are deemed to be valid and enforceable in the Italian law system, although the decisions of the Corte di Cassazione consider the arbitration clause an unfair term, therefore null and void. Arbitration clause, indeed, is not an unfair term since it does not prevent the exercise of the jurisdiction according to article 33, section 2, letter t) of the Italian Consumer Code. Further, arbitration clause does not lead to a material unbalance of the contract according to article 33, section 1 of the Italian Consumer Code: as a matter of fact, arbitration clause does not restrict the rights of action of consumers, as they can recur to a class-wide suit, anyhow. In particular, consumer may recur to class arbitration suits. Similarly, neither class action waiver clause could be considered an unfair term according to article 33 of the Italian Consumer Code, since it does not refrain consumers from recurring to individual suits in order to enforce their rights. Furthermore, class action waiver clause does not lead to a material unbalance of the agreement, since Italian class action system is largely underexploited, yet. Comparative method has been crucial for the scope of work: on one hand, the study of the American model has inspired the work, since Federal Supreme Court already settled arbitration clause issue and class action waiver clause issue by four decisions issued within years 2009/2015. Indeed, the Supreme Court ruled for the validity and enforceability of these clauses, therefore, barring consumers from recurring to class action suits or class arbitration suits as well as to any kind of individual suit, since cost-benefit ratio is totally inefficient. On the other hand, the in-depth analysis of origins of class action in the common law systems revealed the real nature of Italian class action regulations adopted in 2009 and 2019. American class action provision currently in force, i.e. Rule 23 FRCP, is the outcome of principles of representative suit arising from centuries of case law. Indeed, procedural provisions disclaimed by Rule 23 FRCP, especially those regarding the certification phase, are provided in order to grant the plaintiff with a standing to sue in representation of the absent class members: class members which will be actually bound by the decision issued in the class action suit. In other words, procedural prescriptions become the source of the power of the plaintiff to sue in representation of the class. On the contrary, Italian class action regulations do not provide any representative power of the plaintiff, although American rules were the blueprint for the Italian legislator. Therefore, unlike Rule 23 FRCP, Italian class action reg-ulations, instead of being the source of power of the plaintiff to introduce a class action, are just procedural provisions adding to ordinary ones. Thus, the consumer has the right to freely use these special procedural devices and, therefore, consumers are free (i) to renounce to class action suit; or (ii) to adopt class action provisions in a class arbitration regulation.