Chapter Sixteen: Class Arbitration - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor in Chief James M. Gaitis is a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar, who, since 1990, has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
A Fellow of the College of Commercial Arbitrators (2004–present) and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators (2003–present), Mr. Gaitis is a frequently invited speaker and lecturer, has testified in district court proceedings as an expert on arbitrator disclosures and ethics, and is the author of numerous articles relating to arbitration law, several of which have been cited repeatedly to the United States Supreme Court, various federal district courts and federal courts of appeal, and various other courts, such as the Supreme Courts of Texas and Puerto Rico. In 2006, 2010, and 2013, he respectively served first as an Editor and then repeatedly as Editor in Chief of the first, second, and third editions of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration. He also is the Editor of, and a contributing author to, The Leading Practitioners’ Guide to International Oil & Gas Arbitration (Juris 2015) and serves on the Board of Editors of the Journal of World Energy Law & Business (OUP/AIPN). He is a graduate of the University of Notre Dame (BA 1976) and the University of Iowa College of Law (JD 1978), where he served as a Note & Comment Editor on The Iowa Law Review.
William L. D. Barrett, New York, New York
Robert B. Davidson, New York, New York
Eugene I. Farber, White Plains, New York
Louise A. LaMothe, Santa Barbara, California
James R. Madison, Menlo Park, California
Bruce E. Meyerson, Phoenix, Arizona
Deborah Rothman, Los Angeles, California
Francis O. Spalding, San Francisco, California
John H. Wilkinson, New York, New York
Arbitrators who serve in class arbitrations should fulfill the unique procedural and substantive objectives of class actions while providing the efficiencies expected of arbitration proceedings.
I. ACCEPTING AN APPOINTMENT TO SERVE AS AN ARBITRATOR IN A CLASS ARBITRATION
Arbitrators should not accept an appointment to serve in class proceedings unless they believe they are sufficiently qualified to manage all procedural steps through the issuance of a final award.
In 2003, the United States Supreme Court ruled in a plurality decision in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), that an arbitrator can adjudicate a class action but only after the arbitrator has first determined that the pertinent arbitration agreement permits the dispute to be adjudicated as a class arbitration. The Bazzle decision was promptly followed by the publication of the AAA Class Arbitration Rules and the JAMS Class Action Procedures (JAMS Class Arbitration Rules). Thereafter, a series of decisions by the Supreme Court gave rise to confusion regarding a variety of features relating to class arbitration and, more generally, about the future of class arbitrations. The Court’s rulings, including decisions that enforce arbitration clauses expressly prohibiting participation in class arbitrations, have dramatically changed the legal analytical framework regarding the circumstances under which class arbitrations may be maintained. As a consequence, beginning with the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010), the number of class arbitration cases filed with the AAA, which total more than 475 since 2003, dwindled on an annual basis to 22 in 2012 and 27 in 2013 but then rebounded to 38 in 2014 and 43 in 2015 before receding to 30 in 2016.