The Study On The Legal Dilemma Of Class Arbitration

In 2003, the US Supreme Court returned a verdict in the case of Green Tree Financial. Corp. v. Bazzle, which made class arbitration be a focus in the theory and practice. The US courts have dealt with more cases involving class arbitration since then. American Arbitration Association and Judicial Arbitration and Mediation Services,Inc. formulated supplementary rules for class arbitration. There are two opposing views for class arbitration: some scholars hold that class arbitration safeguard the interests of the weak group, the arbitration agreement which do not prohibit class arbitration may be presumed to allow class arbitration, even the prohibition of class arbitration will be illegal. While others think that class arbitration is unable to protect the interests of members who don’t attend the procedure, it cannot explained reasonably the parties have the intention to submit to class arbitration when the agreement is not explicitly permitted class arbitration, class arbitration is not even a form of arbitration. With the controversy, the practice relating to class arbitration in the US has been continued, which also attracted the attention of Europe, the Americas, Asia and other countries. Some scholars are studying the feasibility of introducing class arbitration to other countries, while a small group of scholars discuss whether class arbitration can have a place in the international arbitration.Under this context, this thesis focuses on the legal dilemma of class arbitration in the domestic and international level, demonstrates the irrationality of class arbitration in solving mass disputes, then explains the right attitude to class arbitration in China. The main contents are as follows:The first chapter is about “the present situation of class arbitration”. There are three kinds of Large-Scale Arbitration: class arbitration, collective arbitration and mass arbitration, they are many differences between them, such as the application of procedure and applicable fields. Class arbitration has been developed mainly to resolve domestic disputes, AAA and JAMS accepted many cases relating to class arbitration, and national courts in US, Colombia and Canada also heard cases concerning class arbitration, these indicate that class arbitration active in the field of domestic arbitration. However, although the AAA has accepted 433 various types of class arbitration, they made substantive decisions in seven cases, this shows the role of class arbitration in solving disputes remains to be tested. The US have tried to resolve international disputes by class arbitration, such as President and Fellows of Harward Coll. V. JSC Surgutneftegaz and Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., the tribunal did not make a final decision in the former case, while the US Supreme Court didn’t give permission to class arbitration in the latter case.The second chapter is about “the legal dilemma of class arbitration at the domestic level”. The discussion is divided into two different conditions, the countries which establish the mechanism of Large-Scale arbitration and other countries which don’t. The former is represented by the US and Spain, France, Britain and Japan are on behalf of the latter. The practice of class arbitration is the most abundant in the US, but the US Supreme Court seems to purposely limit the application of class application currently. Spain adopted collective arbitration mechanism in consumer disputes, given the significant differences in collective arbitration and class arbitration, the possibility of introducing class arbitration to Spain is small. In France, Britain and Japan, due to the difficulties to reconcile contradictions between class arbitration and their domestic legal system, there is no possibility of adopting class arbitration.The third chapter is about “feasibility of international class arbitration”. Class arbitration is difficult to ensure impartiality, efficiency and confidentiality, which are advantages of traditional international commercial arbitration, and the characteristics of the class action make it unable to obtain full compensation for the parties. There are many problems in international class arbitration about jurisdiction, arbitral proceedings, recognition and enforcement of awards, which make it difficult to solve international disputes effectively.The forth chapter is about “Legal thinking on dealing with international class arbitration for China”. From the current legislation and the practice of arbitration in China, there is no legal environment for class arbitration and no possibility of introducing it. However, if the US or other countries make a China-related arbitration award in class arbitration procedure and request recognition and enforcement in our courts, domestic courts can reject it accordance with the relevant provisions of the “New York Convention”.