미국 중재절차에서 집단분쟁의 해결

Abstract

The U.S. classwide arbitration or an arbitral class action where any dispute is required to be resolved through an arbitration by an agreement between the parties is a hybrid procedure of class action and mandatory binding arbitration. The Federal Arbitration Act or the Uniform Arbitration Act don’t provide for this classwide arbitration at all. In order to avoid class action proceedings, many companies of the U.S. have drafted standard agreements in which any dispute between the consumers and themselves should be submitted to arbitration, hoping that by this device, only individual procedures could be initiate. In Green Tree Financial Corp. v. Bazzle, the U.S. Supreme Court determined whether the agreement clause allows or prohibits class arbitration is for the arbitrator and not for the court to decide. Where an arbitration clause prohibits explicitly the consumers not to litigate their claims against the company on the class basis, several courts have applied the unconscionability principle to void the clause. But arbitration rules in the securities industry provide that class actions are not arbitrable, a great number of courts have interpreted the rules to mean that plaintiffs may litigate class action claims and need only arbitrate individual claims. For the proceedings of class arbitration, the court’s assistance will be necessary to determine the class issues for class certification, notice, adequacy of class representation, settlement due to the Due Process Clause of the U.S. Constitution. It would be difficult for korean judical system to accept the classwide arbitration which is an unique dispute resolution device in the U.S.A.