ized groups), that is, individuals do not know each other than in cases where the group is organ-
ized, e.g. tribes. Once a group of individuals has gathered to bring a complaint though, the indi-
vidual costs decrease compared with an individual complaint, as the total costs (especially mone-
tary costs) may be shared among those bringing the complaint.75 Still, the individual may not
take the initiative, as it is providing a collective good by the gathering of other concerned indi-
viduals. Here again, the free-rider-effect may come into play.
As group complaints allow for complaints by individuals on behalf of the group, the total costs
may be divided among the group and the gathering costs are not too high, as not every individual
needs to file a complaint separately. Yet, even if a complaint is successful, the benefit is not pri-
vatized, but is collectivized for the benefit of the group, i.e. for all other concerned individuals.
The collective good provided is thus extended to all the group members. The relative share of
benefit of the complainant is thus diminished in group complaints. It is thus rather unlikely that
an individual will sue on behalf of a group or minority on rational grounds, especially if the cost
risk stays with the individual. This argument becomes weaker, however, if this individual has a
(political) stake in the well-being of the group, e.g. as a chief of an ethnic minority.
In contrast, if the costs of a complaint for one single individual are abated through the possibility
of a “collective complaint”, that is NGO complaints or class actions,76 the probability of a com-
plaint being launched rises. Class actions are more effective than alternatives, such as joinders
because in joinders the individual still acts alone in court and the court decision generally takes
effect only inter partes, including the decision on costs.77 In class action cases, the decision ap-
plies to the whole class and costs are shared among class members. Class actions are therefore
especially suited for complaints concerning laws or systematic and large-scale violations. To
lower the costs and thus augment the net benefit for those cases is exactly the rationale of proce-
dural provisions such as class actions in the United States. For class actions to be effective on the
international plane, a look at the incentive structure for lawyers concerning their fees is neces-
sary as without someone being inclined to gather the class and initiate the action, the collective
action problem still arises.
The same applies for altruistic NGO complaints being brought on behalf of an individual or a
whole group. One may ask why NGOs have an incentive to bring a complaint in the first place.
The costs may be high for NGOs, but their incentive to bring a complaint lies in their function
and the possibility of publicity, including the possibility of fund-raising. Furthermore, NGOs,
75 Graphically, this could be shown in a coordinate plane, depicting on the x-axis the number of individuals
required for the complaint and on the y-axis the costs for the initiating individual. Whereas the costs for the
initiating individual will rise up to the quorum, it will fall once the group is gathered. The course of the curve
will differ, depending how difficult it is for the individual to gather other individuals willing to act.
76 Those might be brought by law firms which act pro bono. Those law firms usually act pro bono for
reputational effects and those would be greater with class actions. Thus, a monetary incentive is not
necessary.
77 When the class is not large, joinder of all members as named parties may nevertheless be more practical. For
a broad discussion, see David Rosenberg, “Avoiding Duplicative Litigation of Similar Claims: The
Superiority of Class Action vs. Collateral Estoppel vs. Standard Claims Market”, Discussion Paper No. 394
of the John M. Olin Center for Law, Economics, and Business, Harvard Law School (2002), available at:
<http://www.law.harvard.edu/programs/olin_center/papers/394_rosenberg.htm>.
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