The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?

Abstract

Arbitrators in the United States are often required to construe arbitration agreements that are silent or ambiguous as to class treatment to determine whether class proceedings are contractually permitted. However, it is unclear whether arbitrators are creating an internationally enforceable award when they decide that class arbitration is appropriate in such circumstances. This Article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the Article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the Article is applicable to both domestic class arbitrations and international proceedings, since arbitrators in both contexts must face this issue. Finally, the Article discusses whether class arbitration can, as critics have claimed, be considered a uniquely American device. In the end, the Article concludes that class awards should be granted the same presumption of enforcement that is given to bilateral awards under the New York Convention, even when the arbitration agreement is silent or ambiguous about class treatment.