The potential for conducting arbitration proceedings using class action procedures has become an area of increasing concern for parties to arbitration agreements as well as the courts. The path to class arbitration proceedings began with the decision of the U.S. Supreme Court in Green Tree Financial Corp. v. Bazzle.1 The Court in Bazzle held that, under the Federal Arbitration Act (FAA), the arbitrator, not the court, must decide in the first instance whether an arbitration agreement authorizes or forbids classwide arbitration.2
Prior to Bazzle, most parties had simply assumed that class action procedures could not be adapted for use in arbitration. The decision in Bazzle prompted many parties to include class arbitration waivers in their pre-dispute arbitration agreements. Previous columns have considered circumstances in which such express waivers have been challenged, particularly in consumer contracts of adhesion.3 As discussed in our most recent column, the U.S. Supreme Court will again address the issue of class arbitration in Stolt-Nielsen S.A. v. AnimalFeeds International Corp.4; the precise question in that case is whether the FAA itself prohibits class arbitration where an arbitration agreement is otherwise silent on the question.5
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