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Mass damage cases in the energy industry: Rapid claims mechanisms Michael Faure & Franziska Weber 4th July 2014 Overview 1. 2. 3. 4. 5. Introduction Efficiency Criteria Case study: Assessing the GCCF Design Suggestions Conclusions 2 Faculty of Law 1. Introduction Case example: oil pollution Compensation schemes for the aftermath of disasters Central problem: lengthy mass litigation 3 Faculty of Law 2. Efficiency Criteria Costs of accident law – Calabresi‘s framework Primary costs Secondary costs Tertiary costs 4 Faculty of Law 2. Efficiency Criteria Starting point: Forms of alternative dispute resolution (ADR) work faster and reduce follow-on damage hence reduce primary costs ADR is cheaper to administer hence reduces tertiary costs Consider: Incentives structure of stakeholders in law enforcement 5 Faculty of Law - Freeriding - Capture - Agency Issues Administration - Rational apathy/ frivolous lawsuits Enforcers Victim 2. Efficiency Criteria: - Information asymmetry - Error costs 6 Faculty of Law 2. Efficiency Criteria 1. Victims‘ incentives Court: substantial damage cost: the duration? Few resources (eg advance payments) Relaxed (ADR) procedural rules invite frivolous lawsuits Free-riding less an issue with individual damage claims Grouping claims reduces costs, RA, FR & may allow for information to enter the enforcement response Additional problems? 7 Faculty of Law 2. Efficiency Criteria 2. Enforcers‘ incentives Capture plays more in non-judicial structures Composition/financing/appeal What about thegroup representatives? Consider: error costs (spreading) P/A problem in particular mass cases No further development of the law with ADR 3. Administrative costs - Higher for masses; higher in court From the outset: ADR assumed to be less costly to administer 8 Faculty of Law 2. Efficiency Criteria Essential trade-off Balancing speed vs. thoroughness of the procedure Potential tortfeasor needs to be incentivized to take optimal care Ensuring compensation = Design ADR in a way to use its advantages without falling victim to its flaws 9 Faculty of Law 3. Case study: Assessing the The Gulf Coast Claim Facility (GCCF) Case: Deepwater Horizon Oil Spill Accident Private claims facility A settlement structure under OPA Claimant has the option to file with the GCCF or in court Independent trustees & administrator Payments made: US$10.7 billion of available US$20 billion Currently closed: residual cases in court 10 Faculty of Law 3. The GCCF: Analysis In essence: fast compensation at modest administrative costs Potential to forestall follow-on damages Easy forms, no lawyer, at victims‘ choice Parallel court proceedings Frivolous complaints Taking care of independence Governing structure Involving victims in setting up the protocol (clear, predictable criteria) But? Faculty of Law 11 3. The GCCF: Outcome … A meaningful step to achieve the best of both worlds … 12 Faculty of Law 4. Design suggestions: “Speed versus accuracy“ Two-step system: „time an issue vs. no issue“ Funds need to be ensured, preferably by tortfeasor himself Assessment of claims: tort law criteria Ensure deterrence function Consider potential opportunistic behaviour of the victims Standardization of various types of payments Case-by-case basis Court: an option set clear eligibility criteria Role for courts: marginal review 13 Faculty of Law 5. Conclusion Importance of law enforcement Necessity to provide speedy compensation (for a certain category of victims) Need for an enforcement solution that incorporates „the best of both worlds“ More payments to victims that for the administration …. Experimentation phase 14 Faculty of Law