The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?
Before outlining the structure of this Article, it is useful to clarify two matters regarding definitions and scope. First, in the context of this Article, an “international class award” is an award resulting from an international class arbitration. There are three different types of international class arbitrations: (1) a class arbitration that includes at least one defendant from a country other than the seat of the arbitration, which means that enforcement of an award will have international implications; (2) a class arbitration that involves defendants that may be based in the arbitral forum but that also hold significant foreign assets that could be the subject of an international enforcement action; and (3) a class arbitration that includes claimants from outside the arbitral seat. This Article focuses on the enforcement of awards resulting from the first two types of proceedings, since defendants in both scenarios are likely to raise similar arguments at the enforcement stage.