If contemporary commerce doesn't care about borders, then the law takes fewer liberties. And yet, in contemporary society, there is no trade without law, because there is no trade without contract. So it sometimes happens that goods circulate effortlessly, but the obligations arising from their exchange do not meet the same fate.
The presence and extent of these potholes is unpredictable, and will further disrupt markets. Questions relating to the collective, cross-border exercise of consumer rights provide an excellent example. Hundreds, even thousands, of people living in numerous jurisdictions may have acquired as many copies of a product manufactured by a specific company and found to be defective.
All these buyers may wish to combine their claims against the manufacturer, and in principle, all stand to gain, since the plaintiffs will benefit from a kind of economy of scale. The defendant, on the other hand, will have only one defense, and will have to deal with a single decision rather than thousands: he will sooner be certain of the extent of his obligations.
But will a judgment rendered in a given state be enforceable wherever consumers live? Should a decision handed down in Wisconsin be enforceable against a Sri Lankan or Qatari consumer who was unaware that his rights were being debated? And what law will the court have to apply, if the litigants whose obligations it establishes come from seventy-seven jurisdictions?
This is the challenge posed by cross-border class actions. They're proliferating at the moment, because they seem to have their advantages, but they also have disadvantages that are becoming increasingly apparent. At present, there are no clear rules in Canada to balance these interests and provide a high level of legal predictability. Nor, of course, are there any at international level, to deal with situations where foreign proceedings purport to alter the rights of Canadian consumers.
It is a question of taking into account the accessibility of judicial remedies, the advantage in this respect of class actions, the freedom of defendants and therefore their ability to make a free and informed choice to be bound by a judicial process, the territorial limits to the jurisdiction of the courts, the diversity of national legal systems and the importance of the enforceability of judgments. It is therefore easy to see that the solution does not spring to mind spontaneously. However, the current vagueness of the law benefits no one.
