GUEST-POST PART III: ICSID Accepts First-Ever Class-Type Arbitration

By S.I. Strong

Ultimately, concerns about individual litigation rights did not turn out to be a problem for several reasons. First, the scope of the consent given in the TFA offset any objections from claimants. Second, the homogenous nature of the claims offset any objections from the respondent. Indeed, the tribunal noted that forcing Argentina “to face 60,000 proceedings would be a much bigger challenge to Argentina’s effective defense rights than a mere limitation of its right to individual treatment of homogenous claims in the present proceedings.” Award dated August 4, 2011, ¶ 545. Interestingly, this is an issue that AT&T – the perceived victor of a recent Supreme Court battle over a class arbitration waiver – is now having to face in the form of approximately 1,000 arbitrations filed recently by customers hoping to block a proposed merger. See AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011); Martha Neil, “After Supreme Court Win Forcing Customers to Arbitrate, AT&T Now Sues to Stop the Arbitration,” ABA Journal Online, Aug. 17, 2011.

The tribunal in Abaclat also took institutional, access to justice and international public law concerns into account in its award. Thus:

The Tribunal finds that not only would it be cost prohibitive for many Claimants to file individual claims but it would also be practically impossible for ICSID to deal separately with 60,000 individual arbitrations. Thus, the rejection of the admissibility of the present claims may equal a denial of justice. This would be shocking given that the investment at stake is protected under the BIT, which expressly provides for ICSID jurisdiction and arbitration.

Award dated August 4, 2011, ¶ 537.

Although the August 4 award will have a significant effect on the shape of the arbitral proceedings, the tribunal made it very clear that it was not ruling on the admissibility of any particular claims. Instead, the award simply set forth the general criteria that must be met for a claim to be considered admissible.

The tribunal was also very clear in that it was not setting up general rules of procedure for mass dispute resolution within the ICSID framework. Instead, the tribunal limited itself to creating a procedure to be used in this particular dispute. However, in so doing, the tribunal had to have been aware that ICSID awards are often considered to have some sort of precedential or persuasive value, particularly with respect to matters of procedure. See Gabrielle Kaufmann-Kohler, “Arbitral Precedent: Dream, Necessity or Excuse?” 23 Arbitration International 357 (2007). Therefore, it may very well be that future ICSID tribunals will look to this award as persuasive authority regarding the procedures to be used in mass investment arbitrations. Although the possibility of other large-scale investment claims may seem somewhat far-fetched at the moment, the tribunal appeared to contemplate a possible role for mass claims in international investment disputes, noting that the claimants took the view that this type of suit can provide an additional means of addressing defaults by rogue debtors. See Award dated August 4, 2011, ¶ 514.

Despite the award in Abaclat, mass claims are unlikely to be brought in ICSID arbitrations with any regularity. Nevertheless, this award will likely prove highly influential within a narrow field of disputes, since it provides a thoughtful and insightful look into a number of issues relevant not only to mass claim proceedings in investment arbitration, but also to private forms of class and collective arbitration. Indeed, the award is far too intricate to discuss in a writing of this nature, and this overview has simply set the stage for more detailed discussions that will be forthcoming in time. See S.I. Strong, Class Arbitration and Collective Arbitration: Mass Claims in the National and International Sphere (Oxford University Press, anticipated 2012). Nevertheless, it is hoped that these preliminary comments will inspire those working in the area of class actions, class arbitrations and other forms of collective redress to read the award for themselves. The time spent will pay dividends in the future.

[This is the third installment in a three-part series on the Guest-Post: ICSID Accepts First-Ever Class-Type Arbitration. Part I is here and Part II is here.]

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S.I. Strong is currently Associate Professor of Law at the University of Missouri and Senior Fellow at the award-winning Center for the Study of Dispute Resolution, having previously taught law at the University of Cambridge and the University of Oxford in the United Kingdom. Prior to joining the faculty at Missouri, Dr Strong was Counsel specializing in international dispute resolution at Baker & McKenzie LLP and a dual-qualified practitioner (U.S.-England) in the New York and London offices of Weil, Gotshal & Manges LLP. Dr Strong has acted in arbitral proceedings under a wide range of institutional rules and is listed as a neutral on various national and international rosters. Dr Strong is the author of numerous works on international arbitration, including the award-winning article, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity? 30 Michigan Journal of International Law 1017 (2009), as well as the books Research and Practice in International Commercial Arbitration: Sources and Strategies (2009) and Class Arbitration and Collective Arbitration: Mass Claims in the National and International Sphere (forthcoming), both from Oxford University Press. Dr Strong, who is qualified as a lawyer at the New York and Illinois bars and as a solicitor of the Supreme Court of England and Wales, holds a Ph.D. in law from the University of Cambridge, a D.Phil. from the University of Oxford, a J.D. from Duke University, an M.P.W. from the University of Southern California and a B.A. from the University of California.