Supported by
the Luxembourg National Research Fund
Project O19/13946847
‘The claim here is a ‘mass claim’ in the sense that it is a claim brought by a large number of claimants within the scope of a single case against the Respondent. But this does not imply that it is a representative claim, a class action, or a consolidation of claims, or that it is anything other than what it is – a substantial number of individuals bringing their claims against the Republic of Cyprus within a single case against the Republic… the Tribunal does not see that any consequence flows from the use of the term ‘mass claims’ to describe this case and that the questions of jurisdiction and admissibility are to be decided on the basis of the substantive nature of the claims that are brought and their relevant elements and not on the basis of terminology. Hence, it simply uses the term ‘mass claims’ as a convenient shorthand expression.[27]
order the trader responsible for the intra-Union infringement or widespread infringement to compensate consumers that have suffered harm as a consequence of the infringement (…).
At the end, this power was strongly toned down. Art 9, 4, (c) of the new CPC Regulation[68] simply states that competent authorities shall have
the power to receive from the trader, on the traders’ initiative, additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement covered by this Regulation, or, where appropriate, to seek to obtain commitments from the trader to offer adequate remedies to the consumers that have been affected by that infringement.
The power for authorities to order regulatory redress has been replaced by the possibility for traders to voluntarily offer regulatory redress.
AAA |
American Arbitration Association |
ADR |
Alternative Dispute Resolution |
Art |
Article/Articles |
CDR |
Consumer Dispute Resolution |
ch |
Chapter |
CPR |
Conflict Prevention and Resolution |
Dr |
Doctor |
ed |
editor/editors |
eg |
exempli gratia (for example) |
etc |
et cetera |
EU |
European Union |
FedArb |
Federal Arbitration |
ff |
Following |
GLO |
Group Litigation Order (England) |
Ibid/id |
Ibidem/idem (in the same place) |
ICC |
International Chamber of Commerce |
ICSID |
International Centre for the Settlement of Investment Disputes |
ie |
id est (that is) |
JAMS |
Judicial Arbitration and Mediation Service |
MDL |
Multidistrict Litigation |
no |
number/numbers |
ODR |
Online Dispute Resolution |
para |
paragraph/paragraphs |
UNCITRAL |
United Nations Commission on International Trade Law |
UK |
United Kingdom |
UKCPR |
Civil Procedure Rules (UK) |
US / USA |
United States of America |
v |
versus |
Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR)
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (Codified version) (Text with EEA relevance)
Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (Text with EEA relevance)
Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (Text with EEA relevance)
Federal Arbitration Act of 1925 (United States)
Supplementary Rules for Class Arbitration (2003) (United States)
Legislative Decree No. 385 of September 1, 1993 - Testo unico delle leggi in materia bancaria e creditizia (Italy)
Regulatory Enforcement and Sanctions Act 2008 (United Kingdom)
Abaclat and others v. The Argentine Republic, ICSID Case No ARB/07/05, Procedural Order 15 (2018).
AT&T Mobility LLC v Concepcion, No 09-893 (Supreme Court, US) [563 U.S. 333 (2011)].
Epic Systems Corp. v Lewis, No 16–285 (Supreme Court, US) [544 U.S. __ (2018)].
Greentree Financial Corp. v Bazzle, (Supreme Court, US) [539 US 444 (2003)].
Keating v Superior Court, S.F. 24242 (California Supreme Court, US) 167 Cal. Rptr. 481 (Cal. Ct. App. 1980).
Lamps Plus, Inc. v Varela, No 17–988 (Supreme Court, US) [587 U.S. ___ (2019)].
New Prime Inc. v. Oliveira, 17–340 (Supreme Court, US) [586 U.S. ___ (2019)].
Slovak Republic v Achmea, Case C-284/16 (CJEU) Judgment 6 March 2018 [ECLI:EU:C:2018:158].
Southland Corp. v Keating, No 82-500(Supreme Court, US) [465 US 1,16 (1984)].
Theodoros Adamakopoulos v Republic of Cyprus, ICSID Case No ARB/15/49 (2015).
American Arbitration Association, ‘Employment/Workplace Fee Schedule’ (2020) https://adr.org/sites/default/files/Employment_Fee_Schedule.pdf accessed 29 August 2024.
American Arbitration Association, ‘Supplementary Rules for Class Arbitrations’, adopted 2003; amended 2010 https://www.adr.org/sites/default/files/Supplementary_Rules_for_Class_Arbitrations.pdf accessed 29 August 2024.
American Arbitration Association, ‘Supplementary Rules for Multiple Case Filings’ (2021) https://www. adr.org/sites/default/files/Supplementary_Rules_MultipleCase_Filings.pdf accessed 29 August 2024.
Biard A and Hodges C, ‘Médiation de La Consommation: Un Bilan, Des Défis, Des Pistes de Réflexion Pour l’avenir’ (2019) 2 Contrats Concurrence Consommation 1.
Clancy D and Stein M, ‘An Uninvited Guest: Class Arbitration and the Federal Arbitration Act’s Legislative History’ (2007) 63(1) Business Lawyer 55.
Cortés P (ed), The New Regulatory Framework for Consumer Dispute Resolution (Oxford OUP 2016).
CPR, ‘Employment-Related Mass Claims Protocol’, Version 2.1, September 19, 2022 https://static.cpradr.org/docs/ERMCP%20V2.1%20September%202022.pdf accessed 29 August 2024.
Creutzfeldt N, ‘The origins and evolution of consumer dispute resolution systems in Europe’ in C Hodges and A Stadler (ed), Resolving Mass Disputes. ADR and Settlement of Mass Claims (Edward Elgar Publishing 2013) 223.
FedArb, ‘ADR-MDL Framework for Mass Arbitration Proceedings’ https://www.fedarb.com/framework-for-mass-arbitration-proceedings-adr-mdl/ accessed 29 August 2024.
Fouchard C and Krestin M, ‘The Judgment of the CJEU in Slovak Republic v. Achmea: A Loud Clap of Thunder on the Intra-EU BIT Sky’ (2018) Kluwer Arbitration Blog https://arbitrationblog.kluwerarbitration.com/2018/03/07/the-judgment-of-the-cjeu-in-slovak-republic-v-achmea/ accessed 29 August 2024.
Frankel A, ‘The Problem with Outsourcing Justice to Mass Arbitration Services’ (2020) Reuters https://www.reuters.com/article/world/the-problem-with-outsourcing-justice-to-mass-arbitration-services-idUSKCN20M00Y/ accessed 29 August 2024.
Gerbay R‘Is the End Night Again? An Empirical Assessment of the “Judicialization” of International Arbitration’ (2014) 25(2) The American Review of International Arbitration 223.
Gioia G, ‘L’uniforme regolamentazione della risoluzione alternativa delle controversie con i consumatori’ (2018) 1 Revista Ítalo-española de Derecho procesal 3.
Glover J M, ‘Mass Arbitration’ (2022) 74 Stan L Rev 1283.
Graham C, ‘Consumer ADR and Collective Redress’ in P Cortés (ed), The New Regulatory Framework for Consumer Dispute Resolution (Oxford OUP 2016) 427.
Hagan K, ‘Another Arbitration Service – FedArb – Establishes New Mass Arbitration Protocol’ (2020) FedArb https://www.fedarb.com/another-arbitration-service-fedarb-establishes-new-mass-arbitration-protocol/ accessed 29 August 2024.
Hensler D and Khatam D, ‘Re-Inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication’ (2017) 18 Nevada Law Journal 381.
Hodges C, ‘Consumer Alternative Dispute Resolution’ in B Hess and S Law (ed), Implementing EU consumer rights by national procedural law (CH Beck 2019) 177.
Hodges C, ‘Mass Collective Redress: ADR and Regulatory Techniques’ (2015) 23(5) European Review of Private Law 829.
Hörnle J, ‘Encouraging online alternative dispute resolution (ADR) in the EU and beyond’ (2012) 38(2) European Law Review 187.
ICSID Decision on Jurisdiction and Admissibility, Abaclat and others v. The Argentine Republic, ICSID Case Number ARB/07/05’ https://www.trans-lex.org/291300/_/icsid-decision-on-jurisdiction-and-admissibility-abaclat-and-others-vs-the-argentine-republic-icsid-case-no-arb-07-5/ accessed 29 August 2024.
ICSID: Conventions Regulations and Rules, ‘ICSID Arbitration Rules’ (2022) International Centre for Settlement of Investment Disputes, Chapter VI, Rule 46 https://icsid.worldbank.org/sites/default/files/documents/ICSID_Convention.pdf accessed 29 August 2024.
ICSID: Conventions Regulations and Rules, ‘ICSID: Rules and Regulations’ (2022) International Centre for Settlement of Investment Disputes https://icsid.worldbank.org/sites/default/files/ICSID%20Convention%20English.pdf accessed 29 August 2024.
JAMS, ‘Class Action Procedures’, adopted 2009 https://www.jamsadr.com/rules-class-action-procedures/ accessed 29 August 2024.
JusMundi, ‘Abaclat and Others v. Argentina’ https://jusmundi.com/fr/document/decision/en-abaclat-and-others-formerly-giovanna-a-beccara-and-others-v-argentine-republic-consent-award-under-icsid-arbitration-rule-43-2-thursday-29th-december-2016#decision_404 accessed 29 August 2024.
Lew J, Mistelis L and Kroll S, ‘Multiparty and Multicontract Arbitration’ in J Lew, L Mistelis and S Kroll (ed), Comparative International Commercial Arbitration (Kluwer, 2003) 377.
Macrory R, ‘Regulatory Justice: Making Sanctions Effective, Final Report’ (November 2006) https://webarchive.nationalarchives.gov.uk/ukgwa/20121212135622/http:/www.bis.gov.uk/files/file44593.pdf 30 December 2022.
Menon S and Tian C, ‘Joinder and Consolidation Provision Under ICC Arbitration Rules: Enhancing Efficiency and Flexibility for Complex Disputes’ (2021) Kluwer Arbitration Blog https://arbitrationblog.kluwerarbitration.com/2021/01/03/joinder-and-consolidation-provisions-under-2021-icc-arbitration-rules-enhancing-efficiency-and-flexibility-for-resolving-complex-disputes/ accessed 29 August 2024.
Permisly J and Craven M, ‘Where Are We Now? Investment Treaty Arbitration, Sovereign Debt and Mass Claims in the Post-Abaclat Era’ (2018) 15(1) Transnational Dispute Management 1 https://www.skadden.com/-/media/files/publications/2018/01/where_are_we_now_investment_treaty_arbitration.pdf accessed 29 August 2024.
Smith L S and Vickers M, ‘Does CDR “Get It”?’ in X Kramer, S Voet, L Ködderitzsch, M Tulibacka and B Hess (eds), Delivering Justice. A Holistic and Multidisciplinary Approach. Liber Amicorum in Honour of Christopher Hodges (Hart Publishing 2022) 177.
Sternlight J R, ‘As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?’ (2000) 42(1) William and Mary Law Review.
Van Gelder E M, Consumer Online Dispute Resolution Pathways in Europe. Analysing the Standards for Access and Procedural Justice in Online Dispute Resolution Procedures (Eleven 2022).
Voet S, ‘”Where the Wild Things Are” – Reflections on the State and Future of European Collective Redress’ in A Keirse and M Loos (ed), Waves in Contract and Liability Law in Three Decades of Ius Commune (Cambridge Intersentia 2017) 105.
Voet S, ‘Europe’s Collective Redress Conundrum’ (2018) 61 Japanese Yearbook of International Law 205.
Weber F and Hodges C, ‘The Netherlands’ in C Hodges, I Benöhr and N Creutzfeldt-Banda, Consumer ADR in Europe (Oxford Hart 2012) 129.
[1]* Authors’ note: segment 1 was written by Deborah Hansler; segment 2 was written by Stefaan Voet.
[2] J R Sternlight, ‘As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?’ (2000) 42(1) William and Mary Law Review, 149-151 (reporting interviews with attorneys who represented parties in classwide arbitrations in California and Pennsylvania). The earliest reference to class arbitration is Keating v Superior Court, S.F. 24242 (California Supreme Court, US) 167 Cal. Rptr. 481 (Cal. Ct. App. 1980), reversed on other grounds by Southland Corp. v Keating, No 82-500(Supreme Court, US) [465 US 1,16 (1984)]. Southland was notable for holding that under the Federal Arbitration Act of 1925, federal arbitration law trumped state arbitration law, which previously determined the application of arbitration to most civil lawsuits.
[3] Greentree Financial Corp. v Bazzle, (Supreme Court, US) [539 US 444 (2003)].
[4] D Clancy and M Stein, ‘An Uninvited Guest: Class Arbitration and the Federal Arbitration Act’s Legislative History’ (2007) 63(1) Business Lawyer 55 (reporting that the American Arbitration Association (AAA) issued Supplementary Rules for Class Arbitration in 2003 and that JAMS (the Judicial Arbitration and Mediation Service) followed suit soon after.
[5] Ibid 56 reporting that by September 2007 the American Arbitration Association was administering ‘more than 190 class arbitrations’.
[6] D Hensler and D Khatam, ‘Re-Inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication’ (2017) 18 Nevada Law Journal 381.
[7] Ibid.
[8] AT&T Mobility LLC v Concepcion, No 09-893 (Supreme Court, US) [563 U.S. 333 (2011)].
[9] Epic Systems Corp. v Lewis, No 16–285 (Supreme Court, US) [544 U.S. __ (2018)]; Lamps Plus, Inc. v Varela, No 17–988 (Supreme Court, US) [587 U.S. ___ (2019)]. But see New Prime Inc. v. Oliveira, 17–340 (Supreme Court, US) [586 U.S. ___ (2019)] holding that because the Federal Arbitration Act of 1925 excluded transportation workers from its remit, independent truck drivers could not be bound to an arbitration clause prohibiting class actions.
[10] The federal class action rules also require the court to appoint class counsel and, if the class prevails, award class counsel fees.
[11] Sternlight (n 1).
[12] Ibid.
[13] American Arbitration Association, ‘Supplementary Rules for Class Arbitrations’, adopted 2003; amended 2010 https://www.adr.org/sites/default/files/Supplementary_Rules_for_Class_Arbitrations.pdf accessed 29 August 2024; JAMS, ‘Class Action Procedures’, adopted 2009 https://www.jamsadr.com/rules-class-action-procedures/ accessed 29 August 2024.
[14] The AAA rules, but not the JAMS rules, provide a pause in the process for a party to challenge the appropriateness of a class proceeding before a judge.
[15] R Gerbay, ‘Is the End Night Again? An Empirical Assessment of the “Judicialization” of International Arbitration’ (2014) 25(2) The American Review of International Arbitration 223 (arguing that increasing complexity of international arbitration proceedings reflects increasing complexity of the arbitration caseload).
[16] S Menon and C Tian, ‘Joinder and Consolidation Provision Under ICC Arbitration Rules: Enhancing Efficiency and Flexibility for Complex Disputes’ (2021) Kluwer Arbitration Blog https://arbitrationblog.kluwerarbitration.com/2021/01/03/joinder-and-consolidation-provisions-under-2021-icc-arbitration-rules-enhancing-efficiency-and-flexibility-for-resolving-complex-disputes/ accessed 29 August 2024. The majority of multi-party cases involved multiple respondents but a significant fraction involved multiple claimants and respondents. Ibid.
[17] J Lew, L Mistelis and S Kroll, ‘Multiparty and Multicontract Arbitration’ in J Lew, L Mistelis and S Kroll (ed), Comparative International Commercial Arbitration (Kluwer, 2003) 377. Sometimes an arbitration proceeding may also include a non-contracting party, although the validity of arbitration in such instances may be contested.
[18] See Menon and Tian (n 15); ICSID: Conventions Regulations and Rules, ‘ICSID Arbitration Rules’ (2022) International Centre for Settlement of Investment Disputes, Chapter VI, Rule 46 https://icsid.worldbank.org/sites/default/files/documents/ICSID_Convention.pdf accessed 29 August 2024.
[19] The different varieties of international arbitration are supported by different international conventions. The enforcement of international commercial arbitration of disputes among private parties is granted by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as ‘the New York Convention’. Arbitration of investment disputes between private investors and states, usually contracted for in bi-lateral investment treaties, is governed by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The Convention established the International Centre for the Settlement of Investment Disputes (ICSID), which issues arbitration rules for investor-state disputes and administers arbitration tribunals. Parties to investor-state disputes may choose to arbitrate their disputes in an ad hoc (ie, non-ICSID) process under the United Nations Commission on International Trade Law (UNCITRAL) rules, or may choose to have ICSID administer their arbitration under UNCITRAL rules. Although there are differences between ICSID and UNCITRAL rules, they are quite similar in most respects.
[20] The factual background of this dispute is extremely complex. It is but one of multiple disputes relating to Argentina’s efforts to re-position itself in the bond market after its 2001 fiscal crisis. Briefly, the 60,000 bondholders were mainly individual investors who had declined Argentina’s offer to restructure its bond debt at a substantially discounted price; when the arbitration was initiated there were 180,000 such bondholders but by the time the tribunal issued its jurisdictional decision, the vast majority had accepted Argentina’s offer of payment and withdrawn from the case. See J Permisly and M Craven, ‘Where Are We Now? Investment Treaty Arbitration, Sovereign Debt and Mass Claims in the Post-Abaclat Era’ (2018) 15(1) Transnational Dispute Management 1 https://www.skadden.com/-/media/files/publications/2018/01/where_are_we_now_investment_treaty_arbitration.pdf accessed 29 August 2024.
[21] The bi-lateral investment treaty between Italy and Argentina that governed resolution of this dispute specified that the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (‘the ICSID Convention’) and its rules would apply. See ICSID: Conventions Regulations and Rules, ‘ICSID: Rules and Regulations’ (2022) International Centre for Settlement of Investment Disputes https://icsid.worldbank.org/sites/default/files/ICSID%20Convention%20English.pdf accessed 29 August 2024.
[22] The association, labeled ‘Task Force Argentina’ in English, represented bondholders in negotiations with Argentina for many years after the republic defaulted. Prior to filing its arbitration claims with ICSID, the association asked the bondholders to agree to its representing them in a prospective arbitration. In the information packet the association sent to bondholders it informed them that it would be pursuing the arbitration in their interests, represented by a single law firm, and asked the bondholders to sign a power of attorney. Argentina objected to the association’s filing, arguing that ICSID rules did not provide for claims by ‘groups of people’ or a ‘class action’. The association claimed in response that each investor was initiating a claim on its own behalf; it declined the term ‘class action’ and instead referred to the claims as a ‘joint action’. The tribunal itself used the term ‘mass arbitration’. The background of the Abaclat arbitration and the tribunal’s decision on jurisdiction can be found at Trans-Lex, ‘ICSID Decision on Jurisdiction and Admissibility, Abaclat and others v. The Argentine Republic, ICSID Case Number ARB/07/05’ https://www.trans-lex.org/291300/_/icsid-decision-on-jurisdiction-and-admissibility-abaclat-and-others-vs-the-argentine-republic-icsid-case-no-arb-07-5/ accessed 29 August 2024.
[23] After dissenting from the majority’s decision to take jurisdiction over a ‘mass claim’ proceeding, the dissenting arbitrator stepped down from the tribunal and was replaced, and the proceeding moved into preparation for the merits phase. See JusMundi, ‘Abaclat and Others v. Argentina’ https://jusmundi.com/fr/document/decision/en-abaclat-and-others-formerly-giovanna-a-beccara-and-others-v-argentine-republic-consent-award-under-icsid-arbitration-rule-43-2-thursday-29th-december-2016#decision_404 accessed 29 August 2024.
[24] The Abaclat tribunal used both ‘jurisdiction’ and ‘admissibility’ to refer to its authority to decide claims en masse. As the dispute settled, whether either or both were appropriate bases for its decision was never tested.
[25] Abaclat and others v. The Argentine Republic, ICSID Case No ARB/07/05, Procedural Order 15, https://icsidfiles.worldbank.org/icsid/icsidblobs/OnlineAwards/C95/DC8316_en.pdf accessed 29 August 2024.
The procedure initially proposed by Special Master Norbert Wuhler relied on statistical sampling. In the face of objections, and at the request of the tribunal, Dr Wuhler proposed an alternate approach in which each claim would be verified, requiring triple the amount of money (for a total of USD 270,000) and additional time. The tribunal approved this alternate approach. See Investor State Law Guide, ‘Abaclat and others v. The Argentine Republic, ICSID Case Number ARB/07/05, Procedural Order 17’ (2013) https://www.investorstatelawguide.com/documents/documents/IC-0103-22-%20Abaclat%20v.%20Argentina%20-%20PO17.pdf accessed 29 August 2024.
[26] Theodoros Adamakopoulos v Republic of Cyprus, ICSID Case No ARB/15/49 https://www.italaw.com/sites/default/files/case-documents/italaw11238.pdf accessed 29 August 2024. The application for arbitration was submitted while the Abaclat proceeding was still ongoing. The Adamakopoulos arbitration was complicated by dispute over the effect of Slovak Republic v Achmea, Case C-284/16 (CJEU) Judgment 6 March 2018 [ECLI:EU:C:2018:158] para 50-63. A 2018 CJEU ruling holding that EU law preempts intra-EU bilateral investment treaties. See also C Fouchard and M Krestin, ‘The Judgment of the CJEU in Slovak Republic v. Achmea: A Loud Clap of Thunder on the Intra-EU BIT Sky’ (2018) Kluwer Arbitration Blog https://arbitrationblog.kluwerarbitration.com/2018/03/07/the-judgment-of-the-cjeu-in-slovak-republic-v-achmea/ accessed 29 August 2024. Ultimately, the ICSID arbitration tribunal held that Achmea did not preclude the tribunal’s jurisdiction over the dispute.
[27] Theodoros Adamakopoulos v Republic of Cyprus, ICSID Case No ARB/15/49, para 190-191, https://www.italaw.com/sites/default/files/case-documents/italaw11238.pdf accessed 29 August 2024.
[28] ICSID: Conventions Regulations and Rules, ‘ICSID Arbitration Rules’ (2022) International Centre for Settlement of Investment Disputes, Chapter VI, Rule 46 https://icsid.worldbank.org/sites/default/files/documents/ICSID_Convention.pdf accessed 29 August 2024.
[29] The maximum fee charged by the American Arbitration to an individual employee filing for arbitration is USD 350. In contrast, employers must pay a combined fee of USD 2,850 for responding to the employee’s claim and for ‘case management’. See American Arbitration Association, ‘Employment/Workplace Fee Schedule – Costs of Arbitration’ https://go.adr.org/employmentfeeschedule accessed 29 August 2024.
[30] The complex socio-legal dynamics driving this development have been well described in J M Glover, ‘Mass Arbitration’ (2022) 74 Stan L Rev 1283. Here, I focus on the response of arbitration fora.
[31] The American Arbitration Association (AAA), the provider specified in a large number of the gig workers’ contracts, has a long history of expeditiously arbitrating and mediating mass claims on an individual basis. See https://www.adr.org/sites/default/files/document_repository/Mass-Claims-and-Federal-Programs-ADR.pdf accessed 29 August 2024. In the gig workers’ dispute, defendants did not reject the likelihood that the AAA could handle a large number of workers’ claims; rather, they balked at paying fees for thousands of claims under the lopsided fee schedule that the AAA had adopted years earlier to make the prospect of enforcing mandatory pre-dispute arbitration in employment disputes more palatable to the public. Turning the usual table on defendants, plaintiff attorneys responded by filing motions to compel arbitration, which many (albeit not all) all judges granted. See Glover (n 29).
[32] FedArb, ‘ADR-MDL Framework for Mass Arbitration Proceedings’ https://www.fedarb.com/framework-for-mass-arbitration-proceedings-adr-mdl/ accessed 29 August 2024. Additional fees are charged for hearings that (by inference) would consider common issues, meaning that such fees could be minimized. If the Panel fails to resolve all issues and claims do not settle, then claimants and defendants could proceed to individual arbitration.
[33] K Hagan, ‘Another Arbitration Service – FedArb – Establishes New Mass Arbitration Protocol’ (2020) FedArb https://www.fedarb.com/another-arbitration-service-fedarb-establishes-new-mass-arbitration-protocol/ accessed 29 August 2024.
[34] CPR, ‘Employment-Related Mass Claims Protocol’, Version 2.1, September 19, 2022 https://static.cpradr.org/docs/ERMCP%20V2.1%20September%202022.pdf accessed 29 August 2024. See also A Frankel, ‘The Problem with Outsourcing Justice to Mass Arbitration Services’ (2020) Reuters https://www.reuters.com/article/world/the-problem-with-outsourcing-justice-to-mass-arbitration-services-idUSKCN20M00Y/ accessed 29 August 2024 (reporting on whether CPR’s protocol was deliberately designed to appeal to DoorDash, which, having specified AAA in its gig workers’ contracts attempted summarily to switch its ADR provider to CPR).
[35] I have not been able to find information on what these fees might ultimately amount to. On my reading of the protocol, parties would pay the arbitration fees associated with the ten test cases, and then a single mediation fee for that stage of the process. By inference, arbitration fees would be imposed if and when the mediation fails and individual arbitration proceedings commence. CPR’s ‘due process’ protocol require that parties not be required to pay fees larger than fees that would apply if the claim were to proceed in court in the relevant jurisdiction.
[36] American Arbitration Association, ‘Supplementary Rules for Multiple Case Filings’ (2021) https://www. adr.org/sites/default/files/Supplementary_Rules_MultipleCase_Filings.pdf accessed 29 August 2024.
[37] American Arbitration Association, ‘Employment/Workplace Fee Schedule’ (2020) https://adr.org/sites/default/files/Employment_Fee_Schedule.pdf accessed 29 August 2024. The reduced rates appear to apply solely to the first filing stage. Before an arbitrator can be selected, additional fees of USD 100 per claimant and USD 1750 per defendant is due. Whether this is meant to apply to the appointment of a ‘process arbitrator’ is unclear to me.
[38] For a more extensive discussion of how mass arbitration filings may shape arbitration protocols and forums in the future, see Glover (n 29).
[39] S Voet, ‘”Where the Wild Things Are” – Reflections on the State and Future of European Collective Redress’ in A Keirse and M Loos (ed), Waves in Contract and Liability Law in Three Decades of Ius Commune (Cambridge Intersentia 2017) 105, 137-138.
[40] For a historical overview see N Creutzfeldt, ‘The origins and evolution of consumer dispute resolution systems in Europe’ in C Hodges and A Stadler (ed), Resolving Mass Disputes. ADR and Settlement of Mass Claims (Edward Elgar Publishing 2013) 223.
[41] E M van Gelder, Consumer Online Dispute Resolution Pathways in Europe. Analysing the Standards for Access and Procedural Justice in Online Dispute Resolution Procedures (Eleven 2022).
[42] Directive on alternative dispute resolution for consumer disputes and amending Regulation, 2006/2004 and Directive 2009/22/EC, 2013/11 of 21 May 2013 (EU) and Regulation on online dispute resolution for consumer disputes and amending Regulation, 2006/2004 and Directive 2009/22/EC, 524/2013 of 21 May 2013 (EU).
[43] https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.chooseLanguage accessed 1 December 2022.
[44] For an overview see P Cortés (ed), The New Regulatory Framework for Consumer Dispute Resolution (Oxford OUP 2016).
[45] See L S Smith and M Vickers, ‘Does CDR “Get It”?’ in X Kramer, S Voet, L Ködderitzsch, M Tulibacka and B Hess (eds), Delivering Justice. A Holistic and Multidisciplinary Approach. Liber Amicorum in Honour of Christopher Hodges (Hart Publishing 2022) 177.
[46] C Graham, ‘Consumer ADR and Collective Redress’ in P Cortés (ed), The New Regulatory Framework for Consumer Dispute Resolution (Oxford OUP 2016) 427, 429.
[47] For this reason, some countries introduced limits to the confidentiality rule when mediators detect repetitive and severe misconducts.
[48] Graham (n 45) 429.
[49] G Gioia, ‘L’uniforme regolamentazione della risoluzione alternativa delle controversie con i consumatori’ (2018) 1 Revista Ítalo-española de Derecho procesal 3, 44.
[50] C Hodges, ‘Consumer Alternative Dispute Resolution’ in B Hess and S Law (ed), Implementing EU consumer rights by national procedural law (CH Beck 2019) 177, 182-183 and A Biard and C Hodges, ‘Médiation de La Consommation: Un Bilan, Des Défis, Des Pistes de Réflexion Pour l’avenir’ (2019) 2 Contrats Concurrence Consommation 1, 8.
[51] F Weber and C Hodges, ‘The Netherlands’ in C Hodges, I Benöhr and N Creutzfeldt-Banda, Consumer ADR in Europe (Oxford Hart 2012) 129, 148-149.
[52] C Graham, ‘Consumer ADR and Collective Redress’ in P Cortés (ed), The New Regulatory Framework for Consumer Dispute Resolution (Oxford OUP 2016) 427.
[53] A Biard and C Hodges, ‘Médiation de La Consommation: Un Bilan, Des Défis, Des Pistes de Réflexion Pour l’avenir’ (2019) 2 Contrats Concurrence Consommation 1, 7.
[54] C Hodges, ‘Consumer Alternative Dispute Resolution’ in B Hess and S Law (ed), Implementing EU consumer rights by national procedural law (CH Beck 2019) 177, 182-183.
[55] Art 17.1 and 17.2 Consumer ADR Directive.
[56] J Hörnle, ‘Encouraging online alternative dispute resolution (ADR) in the EU and beyond’ (2012) 38(2) European Law Review 187, 202.
[57] European Comission, ‘Alternative dispute resolution for consumers‘ https://commission.europa.eu/live-work-travel-eu/consumer-rights-and-complaints/resolve-your-consumer-complaint/alternative-dispute-resolution-consumers_en accessed 30 December 2022.
[58] These questions were discussed during the Cross-Border ADR Roundtable that was organized by the European Commission and the ECC-Net on 21 June 2022. See Ku Leuven, ‘Cross-Border ADR Roundtable – Simplifying Cross-Border ADR’ https://commission.europa.eu/system/files/2022-08/cross-border_collective_adr.pdf accessed 30 December 2022.
[59] See S Voet, ‘Europe’s Collective Redress Conundrum’ (2018) 61 Japanese Yearbook of International Law 205, 227-229.
[60] For a typology, see C Hodges, ‘Mass Collective Redress: ADR and Regulatory Techniques’ (2015) 23(5) European Review of Private Law 829, 841-845 (removing illicit profits; ordering redress to be paid; bringing a collective action; piggybacking civil claimants in public enforcement proceedings; referring assessment of loss to the court; ordering an infringer to create a restoration scheme; ordering an infringer to propose a compensation scheme; approving a compensation scheme proposed by one or more parties; referring a proposed compensation scheme to a court for approval; ordering an infringer to negotiate etc.).
[61] Ibid 870-871.
[62] http://www.consumerombudsman.dk/ accessed 30 December 2022.
[63] R Macrory, ‘Regulatory Justice: Making Sanctions Effective, Final Report’ (November 2006) https://webarchive.nationalarchives.gov.uk/ukgwa/20121212135622/http:/www.bis.gov.uk/files/file44593.pdf 30 December 2022.
[64] UK Public General Acts, ‘Regulatory Enforcement and Sanctions Act 2008’ https://www.legislation.gov.uk/ukpga/2008/13 accessed 30 December 2022.
[65] Legislative Decree No 385/1993, https://www.bancaditalia.it/compiti/vigilanza/intermediari/Testo-Unico-Bancario.pdf accessed 30 December 2022.
[66] Regulation on cooperation between national authorities responsible for the enforcement of consumer protection laws, 2006/2004 of 27 October 2004 (EU).
[67] Proposal for a Regulation of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws, COM(2016) 283 final of 25 May 2016.
[68] Regulation on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation, 2006/2004, 2017/2394 of 12 December 2017 (EU).