Partners Jamie E. Hanley and Jonathan D. Waisnor are the authors of an informative article “The Case for Mass Arbitrations” published in the Law Society Gazette, which provides an overview of the development of mass arbitration protocols in the U.S. and whether they could be introduced in the UK as solutions to consumer or employee claimants seeking redress for widespread business practices.

In the U.S., the mass arbitration phenomenon arose when companies were successful in convincing courts to enforce pre-dispute arbitration clauses for consumer or employment disputes.  These arbitrations, Jamie and Jonathan explain, include disputes over consumer finance, data privacy and breaches, deceptive and false advertising, gaming addiction, employee misclassification, underpayment of wages and benefits, and antitrust/competition claims.  Arbitration providers such as the American Arbitration Association have since developed regulations regarding these arbitrations.

Jamie and Jonathan compare the rise of mass arbitration in the U.S. to the increasing number of collective action mechanisms used in the UK by claimants seeking redress for corporate injuries, such as the upward trend in claims brought to the Competition Appeal Tribunal (CAT) and Part 19 of the Civil Procedure Rules.  Explaining that UK regulators are “empowered to create collective redress schemes,” the authors posit that mass arbitration in the UK would need to “supplement, or provide a viable alternative to, the existing collective action schemes.”

While UK companies typically cannot enforce binding pre-dispute arbitration clauses against consumers or employees, Jamie and Jonathan provide several proposals  for how to enforce such clauses in the UK, including one-way ‘non-binding’ arbitrations and post-dispute binding arbitration clauses, explaining that—with the rise of class, collective, and group actions in the UK—companies will need to consider the “specific types of dispute and under what terms and conditions they could offer mass arbitration as a solution.”