Class Arbitration Outside the United States: Reading the Tea Leaves

Abstract

This draft paper, which is expected to be published in 2010 by the ICC Institute of World Business Law in Dossier VII - Multiparty Arbitration, discusses the question of whether and to what extent class arbitration (also known as class action arbitration) will expand beyond the borders of the United States and the ways in which the device might change to suit the needs of different legal systems. In so doing, the paper discusses recent empirical evidence involving the increasing availability of collective relief in the judicial context in systems around the world and argues that courts, arbitrators and parties outside the United States are unlikely to adopt the U.S. model of class arbitration but will instead create into a new form of multiparty arbitration that is more appropriately termed "collective arbitration," due to anticipated similarities to various forms of collective redress in different legal systems. The discussion also considers the policy rationales affecting the decision to create or utilize a form of collective arbitration as well as the theoretical debates that affect the expansion of class or collective arbitration into new jurisdictions.

Keywords: class arbitration, class action arbitration, multiparty arbitration, collective arbitration