The U.S. Supreme Court has ruled that “class arbitration” may be permitted if an arbitration agreement authorizes it, Stolt-Nielsen v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684 (2010), and that state contract law governs the interpretation of the parties’ arbitration agreement. A proposal: that an agreement to permit class arbitration must be “clear and unmistakable” to be enforceable.

This is analogous to the “clear and unmistakable” standard for determination of whether parties have agreed to delegate gateway arbitrability issues to an arbitrator; i.e., whether the presumption that courts are to adjudicate issues of arbitrability, cf. FAA § 4 (9 U.S.C. § 4), is rebutted.

Since SCOTUS has indicated — most recently in Epic Systems Corp. v. Lewis, 2018 U.S. LEXIS 3086 (May 21, 2018) — that arbitration is fundamentally a less formal method of bilateral dispute resolution, it seems reasonable to presume that an arbitration agreement intends a bilateral proceeding unless the parties clearly and unmistakably manifest an intention to permit “class arbitration.” Consider that

“[t]he U.S. Supreme Court … held that the differences between bilateral and class-action arbitration are too great … to presume that the parties’ mere silence on the issue of class-action arbitration constitutes a consent to class-action arbitration….” 1 Ohmke, Commercial Arbitration §16(1); accord, 2 Domke, Commercial Arbitration §32:32

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