S.I. Strong (University of Missouri School of Law) has posted “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared”, North Carolina Journal of International Law and Commercial Regulation, forthcoming/University of Missouri School of Law Legal Studies Research Paper No. 2011-24. The abstract reads:
Class arbitration is a dispute resolution device that takes certain procedures more commonly seen in judicial class actions and transplants them into arbitration. The mechanism is of great interest in North America right now, with both the U.S. Supreme Court and the Supreme Court of Canada having heard several relevant cases in the last few years.
Despite sharing a similarly liberal attitude toward both arbitration and judicial class actions, the two countries have taken different approaches to the question of class arbitration. However, neither nation has identified a completely satisfactory solution to the problems that arise when mass claims are asserted in the face of an arbitration agreement, suggesting that both states could benefit from a comparative analysis.
This Article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the Article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.
The paper is available for download from SSRN here.