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.
As a result of a recent series of decisions by the United States Supreme Court, the future of class arbitration is very much in doubt. 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. These changes could not have been anticipated in 2003 when the Court held in a plurality opinion that it was up to arbitrators to determine whether an arbitration agreement permitted a class arbitration. See Greentree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003). As a consequence, beginning with the Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758, the number of class arbitration cases filed with the AAA, which total more than 350 since 2003, has dwindled on an annual basis to 36 in 2011, 22 in 2012, and 13 through June 2013.