Submitted in honor of Professor George A. Bermann, a professor who has always encouraged independent thinking and instilled a desire in all his students to confront difficult legal questions. It has been an honor to count myself among his students as well as research assistants and to eventually return to Columbia to teach a class together. May his creativity, energy and passion continue to inspire countless other students.
Class arbitration (also known as class action arbitration) is now well established in the United States, and it has been characterized as a “‘uniquely American’ device.” However, its practice has not been entirely confined to the United States and it may very well gain traction in other jurisdictions. It is, therefore, only a matter of time until a party seeks the recognition and enforcement of a class arbitration award.
The prospective recognition and enforcement of class arbitration awards raises a number of interesting questions: should the Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ (the “Convention”) presumption in favor of enforceability be overcome where a party is seeking to enforce a class arbitration award? How does the silence of an arbitration agreement on the question of class proceedings impact enforceability? What are the consequences of setting aside a waiver of class proceedings? To date, there have been no decisions on the enforceability of a class arbitration award, and limited scholarship speculating on the results of any such case.