Class Arbitration in Australia: A Bright Future or a Pipe Dream?

Abstract

Class arbitration has been a hotly debated issue in academic circles since the turn of the century throughout the world. Much literature has recognized that class arbitration could be an effective means of resolving the ever-increasing number of mass claims with cross-border implication. However, the cross-border advantage of class arbitration is dependent on the legal community’s ability to craft a procedure that is acceptable across a diverse tapestry of legal systems around the world. In continental European legal systems there appears to be a jurisprudential battle underway with some supporting class arbitration, and many fundamentally objecting to it (some authors have even argued that class arbitration would be unconstitutional). These objections have not halted the development of alternative collective redress regimes in EU Member States, (albeit they are disparate and often incomplete) demonstrating an underlying appetite for collective redress. Australia has had a wealth of experience with judicial class actions, whilst there is little literature considering the possibility of class arbitration. This paper: (1) considers whether class arbitration would even be possible under Australian law, and (2) proposes a ‘less is more’ class arbitration regime that would be harmonious on an international level.