Author ORCID Identifier

0000-0002-5453-6703

Document Type

Article

Publication Date

2009

Keywords

International class arbitration, Efficiency, Implied consent, New York Convention, International tribunals, Enforceability of awards

Abstract

The Article's overall aim is to determine the international enforceability of international class awards in cases in which the arbitration agreement is silent or ambiguous as to class treatment. Part I therefore describes the current consensus on class arbitration in the United States to lay the groundwork for further discussion. This Part also describes the incidence of class arbitration in other domestic contexts, showing that class arbitration is not as "uniquely American" as opponents have claimed. Part I continues with an overview of international class arbitration to date and identifies the likelihood of international class arbitration's expansion in the future.

Part II sharpens the debate about the propriety of class arbitration with a pointed discussion of the objections that have and will be made to this particular dispute resolution device. First, this Part outlines how those who are opposed to international class arbitration prefer to interpret arbitration agreements that are silent or ambiguous as to class treatment, concluding that most opponents rely on strict construction of the arbitration agreement, i.e., a view that class arbitration is improper in the absence of explicit agreement to such proceedings. The Part continues with a discussion of the extent to which class arbitration can be considered analogous to non-consensual consolidated arbitration, since opponents to class arbitration are likely to claim that consolidation's disfavored status in the international realm should be extended to class arbitration as well. In considering the merits of this view, the text outlines the structural differences between the two procedures as well as their differing policy rationales before concluding that class arbitration is supported by several persuasive public policies that do not apply to consolidated arbitration. Although these public policy rationales do not, by themselves, justify a presumption in favor of permitting class arbitration when the arbitration agreement is silent or ambiguous as to class treatment, they do suggest that strict constructionism may not be the best response to the challenges associated with class proceedings in arbitration.

Whereas Part II focuses primarily on policy issues, Part III focuses on principles of law. In particular, Part III responds directly to the views asserted by opponents to class arbitration by demonstrating that (1) reliance on analogies to consolidation is inapt because these analogies are based on legal principles that are no longer in force and (2) strict constructionism utilizes an unnecessarily restrictive reading of the doctrine of consent. This Part also evaluates the extent to which interpretive methods used by U.S. arbitrators to construe an arbitration agreement that is silent or ambiguous as to class treatment measure up to internationally accepted standards regarding contract interpretation. As it turns out, the interpretive method currently used in U.S. class arbitrations conforms to international arbitral practice and is entirely appropriate to a dispute resolution mechanism founded on consent and party autonomy.

Once the propriety of international class arbitration has been established as a matter of international law and policy, the discussion turns in Part IV to how U.S.-based class arbitrations should fare in international enforcement proceedings. In particular, this Part contemplates specific objections that might be made under Article V(1)(d) of the New York Convention to a class award rendered in the United States under an arbitration agreement that was silent or ambiguous as to class treatment and suggests how courts asked to enforce such an award should view those objections.

First Page

1017

Publication Title

Michigan Journal of International Law

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