Who may determine whether “class arbitration” has been authorized by the parties to an arbitration agreement — a court, an arbitrator, either? Considering the nature of “class arbitration,” is this a special case of the arbitrability delegation issue, or is this issue sui generis? And what does exploring the issue reveal about the larger question of whether “class arbitration” is an oxymoron?
The starting point for any analysis concerning arbitration is that it is a creature of contract. It is what the parties to an arbitration agreement have agreed it shall be.
It appears that SCOTUS will get to opine during its next term on whether an arbitration agreement that says nothing about class arbitration can be interpreted to constitute consent by the parties to permit class arbitration. SeeLamps Plus, Inc. v. Varela, No. 17-988, 2018 WL 398496 (U.S. Apr. 30, 2018). But when will SCOTUS specify who may decide that question?
