1. 519 F.2d 974, 986 (2d Cir. 1975).

2. 1994 US Dist. LEXIS 12521 (N.D. Ala. 1 Sept. 1994).

3. Idem, *45.

4. Idem, *54.

5. Fed. R. Civ. Pro. 23(e) provides that a class action settlement is subject to the approval of the assigned judge. Case law has developed expanding upon this notion. Generally speaking, in reaching a decision, the judge must protect the interests of the absent class members.

6. The Manual for Complex Litigation, Second, §30.44 (1985) states: “If the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls with in the range of possible approval, then the court should direct that notice be given to the class members of a formal fairness hearing, at which evidence may be presented in support of and in opposition to the settlement.”

7. Often the parties will stipulate that they accept class certification for settlement purposes as part of their agreement. If counsel for the parties have agreed upon a settlement, and are prepared to stipulate as to their acceptance of the class certification for this purpose, then the court's enquiry as to whether the class truly meets the criteria prescribed in R.23 may be less rigorous. However, the Third Circuit has recently taken the view that “there is no language in [R.23] that can be read to authorize separate, liberalized criteria for settlement classes”. In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig. 55 F.3d 768, 799 (3d Cir. 1995), cert, denied sub nom General Motors Corp. v. French 133 L.Ed 2d 45, 116 S.Ct. 88; Georgine v. Amchem Prods. Inc. 83 F.3d 610 (3d Cir. 10 May 1996), cert, granted, sub nom Amchem Prods. v. Windsor 1996 US LEXIS 6586 (US Nov. 1. 1996). In other words, if the class would not be certified for the purposes of trial, it will not be certified for settlement purposes.

8. The criteria generally used in determining whether a settlement is fair, reasonable and adequate are: (1) likelihood of recovery, or likelihood of success; (2) amount and nature of discovery or evidence; (3) settlement terms and conditions; (4) recommendation and experience of counsel; (5) future expense and likely duration of litigation; (6) recommendation of neutral parties, if any; (7) number of objectors and nature of objections: (8) the presence of good faith and the absence of collusion: Newberg, H., Newberg on Class Actions (3rd edn, 1992). §11–43.Google Scholar

9. R.23(b) provides:

“(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of: (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole: or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum: (D) the difficulties likely to be encountered in the management of a class action.”

10. Newberg, , op. cit. supra n.8, at §4.01.Google Scholar

11. R.23(c)(2) provides: “In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.”

12. Ibid.

13. Ibid.

14. See ABA Section of International Law and Practice, Enforcing Foreign Judgments in the United States and United States Judgments Abroad (Brand, Ronald A. (Ed.), 1992), p.93Google Scholar. See also Dicey, and Morris, , The Conflict of Laws (12th edn. 1993). p.460 where the authors state that “several important foreign countries (including the United States) do not yet have treaties with the United Kingdom for the reciprocal enforcement and recognition of judgments”.Google Scholar There is considerable English case authority confirming this. In Owens Bank Ltd v. Etoile Commerciale SA [1995] 1 W.L.R. 44 (PC) Lord Templeman stated: “There are many countries including, for example, the United States of America with whom the United Kingdom has no reciprocal arrangements.” In the United States there is equally recent authority. In Leslie v. Lloyd's of London No.H–90–1907, 1995 US Dist. LEXIS 15380. at *107–108 (S.D. Tex. 28 Aug. 1995) it was found that “England and the United States are not parties to any treaty providing for the reciprocal enforcement of judgments.” There are, however, moves afoot to put in place a multilateral convention on the recognition and enforcement of foreign judgments. At the June 1992 meeting of the Special Commission on General Affairs and Policy of the Hague Conference on Private International Law, the US delegation proposed that the Convention undertake work on a convention dealing with the recognition and enforcement of foreign judgments. A working group was formed to report to the next Hague Conference. In May 1993 the 17th Session of the Hague Conference on Private International Law decided “to include in the agenda for the work of the Conference the question of the recognition and enforcement of foreign judgments in civil and commercial matters”: Hague Conference on Private International Law: Final Act, 29 May 1993 (Final Edn, 17th Sess. 1993). A Special Commission met in the Hague on 20–24 June 1994, to begin preliminary work on a convention. Nothing has, as yet, come to fruition: Arthur T.von Mehren, “Recognition and Enforcement of Foreign Judgments: A New Approach for the Hague Conference?” (1994) 57 Law & Contemp. Probs. 271–272.

15. See e.g. Dicey and Morris, Idem, p.454.

16. This is not so in relation to courts of limited jurisdiction, such as the US federal courts.

17. Nor have, to my knowledge, the courts of Canada, Australia or New Zealand.

18. [1962] 2 Lloyd's Rep. 459 (QB). Because the judge had already found in favour of the defendants, the discussion of the res judicata effect of the US class action was obiter.

19. As such, it was not a true class action, a fact recognised by the Advisory Committee when amending the rules in 1966: “The ‘spurious’ class action envisaged by original Rule 23 was in any event an anomaly because, although denominated a ‘class’ action and pleaded as such, it was supposed not to adjudicate the rights or liabilities of any person not a party.”

20. [1962] 2 Lloyd's Rep. 459, 473 (QB).

21. See e.g. Plummer v. Chemical Bank 668 F.2d 654,660 (2d Cir. 1982).

22. [1967] 1 A.C. 853 (HL).

23. Idem, pp.909–910 (emphasis added).

24. Idem, p.933 (emphasis added).

25. Idem, p.918.

26. (1889) 15 App.Cas. 1.

27. [1985] 1 W.L.R. 490, 494 (HL).

28. Plummer. supra n.21, at p.660.

29. [1985] 1 W.L.R. 490, 499.

30. Idem, p.494.

31. [1895] 1 Ch. 37, 45. The judgment was affirmed by the Court of Appeal: idem, p.48.

32. (1898) 29 Can. S.C.R. 211.

33. [1980] 1 W.L.R. 1482 (CA).

34. 2nd edn, 1969, p.59.

35. (1867) L.R. 1 Sc. & Div. 117 (HL (Scot.)).

36. 1957 S.L.T. 205 (HL (Scot.)).

37. Idem, p.207.

38. 414 U.S. 538, 550–551 (1974).

39. 104 F.R.D. 559, n.1 (E.D.N.Y. 1985) (citations omitted).

40. Moon v. Atherton [1972] 2 Q.B. 435, 441 (CA).

41. [1992] 1 Q.B. 526, 543.

42. [1975] A.C. 591 (HL).

43. (1869) L.R. 4 Q.B. 653 (CA).

44. The Foreign Limitation Periods Act 1984 provides that a foreign judgment determining any matter by reference to limitation is deemed to be on the merits.

45. Supra n.43, at p.658.

46. Ibid.

47. As an aside, it is worth noting that the US Supreme Court in Matsushita Elec. Indus.Co. v. Epstein 134 L.Ed 2d 6, 116 S.Ct. 873 (1996) held that, as Delaware law permitted even exclusively federal claims to be compromised in a class action settlement in State court, the parties to class action litigation in Delaware could fashion a settlement that releases all claims—State and federal—related to the transaction at issue, regardless of whether the claims could have actually been asserted in the Delaware proceedings.

48. [1893] A.C. 518, 522–523 (PC).

49. [1910] 2 K.B. 1021, 1039 (CA) (emphasis added).

50. [1990] 2 W.L.R. 117 (CA).

51. Idem, p.132.

52. Supra n.50. at pp.1026, 1031–1032.

53. Idem, pp.1040–1041.

54. [1901] A.C 424, 443 (HL).

55. [1981] Ch. 229, 254.

56. [1987] 1 N.Z.L.R. 260 (HC).

57. Idem, p.271.

58. F.C. 95/0004 (H.Ct. 23 Feb. 1995).

59. [1899] 1 Ch. 871, 790 (CA).

60. (1927) 138 L.T. 386 (CA).

61. Idem, p.392.

62. Idem, p.390.

63. US courts apply a similar standard when considering the enforcement of foreign judgments.

64. See Part C.2 of this article.

65. 472 U.S. 797 (1985).

66. [1990] Ch. 433. On 24 Oct. 1989 the Appeal Committee of the House of Lords dismissed a petition by the plaintiffs for leave, to appeal.

67. Idem, p.498.

68. Idem, p.564.

69. Idem, p.565.

70. Idem, pp.566–567 (emphasis added).

71. Idem, p.565.