Feasibility of class arbitration

Contemporary Issues in International Arbitration and Mediation: The Fordham Papers

Volumn 2, Issue , 2009, Pages 183-196

  Fellas, John ^a  

^a Hughes Hubbard and Reed LLP   (United States)

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EID: 84966659480     PISSN: 22107053     EISSN: None     Source Type: Book Series    
DOI: 10.1163/ej.9789004175556.i-382.65     Document Type: Conference Paper

References (23)

1. Green Tree Fin. Corp v. Bazzle, 539 U.S. 444 (2003).
2. Bazzle v. Green Tree Fin. Corp., 351 S.C. 244, 569 S.E.2d 349 (2002).
3. Green Tree Fin. Corp v. Bazzle, 539 U.S. 444, 454 (2003).
4. See http://www.jamsadr.com/rules/classaction.asp.
5. See Albert Jan van den Berg, "The Application of the New York Convention by the Courts," ICCA Congress Series No. 9 25 (1999)
6. Sir Michael J. Mustill & Stewart C. Boyd, The Law and Practice of Commercial Arbitration in England (2d ed. 1989)
7. Alain Hirsch, "The Place of the Arbitration and the Lex Arbitri," 34 Arb. J. 43, (1979)
8. Alan Scott Rau, "The New York Convention in American Courts," 7 Am. Rev. Int'l Arb. 213 (1996).
9. See also Karaha Bodas Co., L.L.C v. Perusahaan Pertambangan Minyak Dan Gas, 364 F.3d 274, 291 (5th Cir. 2004).
10. Green Tree Fin. Corp v. Bazzle, 539 U.S. 444 (2003).
11. None of this is to suggest that class arbitration is not possible in countries besides the United States. In fact, in an excellent and illuminating discussion of the issue, Professor Stacie Strong has identified other countries where class arbitration may be recognized. See Stacie I. Strong, "Class Arbitration in the International Sphere: Due Process and Public Policy Concerns," 30 U. Pa. J. Int'l L. 1 (2008).
12. Green Tree Fin. Corp v. Bazzle, 539 U.S. 444 (2003).
13. In Stolt-Nielsen S.A v. Animalfeeds International Corp., 2008 WL 4779582 (2d Cir. Nov. 4, 2008) the Second Circuit reversed a finding by the District Court for the Southern District of New York that arbitrators acted in manifest disregard of the law in construing an arbitration clause, silent as to whether class arbitration was permitted, to permit class arbitration. In another case brought under the Supplementary Rules, which in the interests of full disclosure, I should note I am one of the arbitrators, Judge Berman confirmed a clause construction award finding the clause in question permitted class arbitration, holding that there was no manifest disregard on the part of the arbitrators: "The 'manifest disregard doctrine [applies] ⋯ only in the most egregious instances of the misapplication of legal principles.'
14. ∗3 (S.D.N.Y. Oct. 11, 2007) (citation omitted).
15. Hall St. Assocs. LLC v. Mattel, 128 S. Ct. 1396 (2008).
16. See Kashner Davidson Sec. Corp v. Steve Mscisz, 2008 WL 2553337 (1st Cir. June 27, 2008) (affirming application of manifest disregard doctrine in a decision after Hall Associates)
17. Stolt-Nielsen S.A v. Animalfeeds Int'l Corp., 2008 WL 4779582 (2d Cir. Nov. 4, 2008) (same).
18. This policy states that it has been the practice of the American Arbitration Association since its Supplementary Rules for Class Arbitrations were first enacted to require a party seeking to bring a class arbitration under an agreement that on its face prohibits class actions to first seek court guidance as to whether a class arbitration may be brought under such an agreement. The Association's practice has been neither to commence administration of a case nor to refer such a matter to an arbitrator until a court decides that it is appropriate to do so. The Association's determination not to administer class arbitrations where the underlying arbitration agreement explicitly precludes class procedures was made because the law on the enforceability of class action waivers was unsettled; the Association takes no position as to whether such clauses are or should be enforceable. See the American Arbitration Association Web site, http://www.adr.org/sp.asp?id=28779.
19. See, e.g., Giovani Depianti v. Bradley Mktg. Enters. Inc., AAA Case No. 11, 114 00838 07, Clause Construction Award, Aug. 1, 2008, at 8 (clause providing that "'[a]ll disputes, controversies and claims of any kind arising or relating to this agreement shall go to arbitration"' was "clearly a broad one" such that "[c]laimants rightly contend that this broad directive would appear to include any claim ⋯ including a class claim.").
20. See http://www.adr.org/si.asp?id=5442.
21. See, e.g., Tomeldon Co. Inc. v Medco Health Solutions, Inc., AAA Case No. 11 193 00546 06, Clause Construction Award, Nov. 22, 2006, at 13 (arbitration clause covering "'any controversy or claim' ⋯ is so broad as to bring within its sweep all disputes about payments and audits⋯. This language is certainly broad enough to include a claim brought in a representative capacity and would, without more, permit a class arbitration.").
22. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)
23. Phillips Petroleum Co v. Shutts, 472 U.S. 797 (1985).