1. INTRODUCTION

Arbitration is a widely accepted alternative to domestic courts in commercial disputes, domestic and international. It is also the forum for disputes involving a commercial entity and a state or an entity of a state in international trade.

In Canada, since the 1980s, courts recognize that parties’ autonomy should prevail, and widely accept the use of a private dispute prevention and resolution process to solve commercial disputes, especially arbitration. Even governments in Canada embrace arbitration; for example, all federal major public work contracts include an arbitration agreement.

Eager to increase access to justice, governments are now favouring private dispute prevention and resolution processes to solve almost all kind of civil disputes. 1As my panel colleague Elie Kleiman states in his paper: "Out-ofcourt resolution of disputes can serve as a complement to judicial proceedings as it would allow low-value disputes that would not have been otherwise submitted to a court to proceed and be resolved." 2

In some jurisdictions, consideration or use of alternative dispute resolution processes (ADR) are even a condition precedent to court litigation. The most recent example is the new Code of Civil Procedure of Quebec that states in its article 1 that "parties must consider private prevention and resolution processes before referring their dispute to the courts." 3Commenting this provision, the Minister of Justice of Québec said that "although it is not binding as to render inadmissible the lawsuit that would not have been preceded by an attempt to settle, the provision should, because of its mandatory nature, cause a significant change in the role of lawyers who should now discuss with their clients the range of possibilities for conflict resolution." 4

As elsewhere, the two main ADR contemplated by this new code are mediation and arbitration. It is fair to say that arbitration is now a method of dispute adjudication welcomed in almost all areas of the law as a matter of public policy.

Class action is a frequently used court procedure in Canada. It represents a substantial part of the case load in the Courts, especially in the largest provinces, Ontario, Quebec and British Columbia. Since it consumes a large portion of the scarce judicial resources, one could think that the governments should push for private class arbitration to remove some of the strain on the judicial system.

Though this could be seen as the next logical thing to do, so far neither the Canadian legislatures nor the courts have considered in what circumstances arbitration could be considered as an alternative to class action to determine a class claim or how they could be combined to achieve more access to justice or to improve the efficiency of the court system.

I will discuss below public policies, legal impediments and commercial reasons that appear to be preventing the emergence of class arbitration in Canada.

2. CLASS ACTIONS IN CANADA

Canada is a federal state. Civil rights and civil procedure are matters reserved for the provinces (equivalent to states in the US and Australia). Contrary to the US Congress, the Canadian Federal Parliament has no significant role to play in connection with court proceedings, mediation and arbitration. Thus my comments addressed the situation according to provincial laws.

Class and group actions are two distinct procedures not to be confused. In Canada, a class action is a procedure pursuant to which a person is authorized to act on behalf of a group defined by the court and composed essentially of absentees. A group action is essentially a consolidation of individual claims in which each claimant is identified and has consented to the proceedings.

Class action is no longer a new proceeding in Canada. 5It is widely known and used. Each province except one has enacted a comprehensive class action act. There are also federal rules of civil procedure authorizing class actions before the Federal Court (these are rarely used considering the limited jurisdiction of the Canadian Federal Court compared to the US Federal Courts).

For class action related to publicly traded securities, a model act was negotiated by the 10 provincial regulators and then enacted by each province. It provides for specific redress and procedures and raises the threshold to get an authorization to proceed, called a certification.

In Canada, like in the US, class action is defined as a procedural right, not as a substantive right. The same is true for arbitration.

The driving principle behind class actions is that they provide access to justice in situations where no redress would be sought if left to individual claimants. In the seminal case Western Canadian Shopping Centres Inc. v Dutton [2001] SCC 46, the Canadian Supreme Court held:

Class actions offer three important advantages over a multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. The efficiencies thus generated free judicial resources that can be directed at resolving other conflicts, and can also reduce the costs of litigation both for plaintiffs (who can share litigation costs) and for defendants (who need litigate the disputed issue only once, rather than numerous times) (…)

Second, by allowing fixed litigation costs to be divided over a large number of plaintiffs, class actions improve access to justice by making economical the prosecution of claims that would otherwise be too costly to prosecute individually. Without class actions, the doors of justice remain closed to some plaintiffs, however strong their legal claims. Sharing costs ensures that injuries are not left unremedied(…)

Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers do not ignore their obligations to the public. Without class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery. Cost-sharing decreases the expense of pursuing legal recourse and accordingly deters potential defendants who might otherwise assume that minor wrongs would not result in litigation(…)

This does not mean that class actions are confined to cases where each member of the class is awarded a small amount. In fact, it is also used to claim substantial compensatory damages in cases where plaintiffs will unlikely be able to finance the high costs associated with an individual proceedings (for examples, the breast implant6, the weight control pills7and the tobacco smoking related cancers cases8).

The Canadian class action system is essentially an opting-out model and the two major forum for class actions, Quebec and Ontario, do certify Canadian and international classes, while in British Columbia, non-residents have to opt-in to become members of the class.

Finally, contrary to the US, class actions in Canada are decided by a judge alone without any civil jury.

The current hot issues are related to proper notices to opt out, collective recovery9versus individual claims, information about the claim process once a judgment rendered in favor of the class (low take-up rate), cypress orders (relating to the distribution of huge unclaimed amounts when collective recovery was ordered instead of individual claims), punitive damages, class lawyers’ fees and third-party financing.

Some of these issues are accentuated when you have a national or international class and may result in a refusal to recognize or enforce the settlement/judgment in other jurisdictions exposing the defendant to a new class action. Thus lawyers file similar class actions in many provinces. Subsequently, all but one of them are suspended until a settlement is reached or a judgment is rendered in the chosen province. This settlement or judgment is afterwards used to terminate the others stayed class actions trough settlements.

Most of these problems could be solved if the provinces were to agree on uniform procedures for notices and an enforcement process. But despite invitations to do so from the Supreme Court of Canada and the bar, the provinces have not yet embarked on such a project.

Notwithstanding the potential improvements suggested, the class action procedure in Canada is widely considered a success.

This success results from many factors: an active specialized bar; comprehensive set of rules in each province; relatively low threshold to get certification; 10limited requirements on who can act as a representative and initiate the proceedings; courts’ familiarity with the process; no restriction on remedies that can be sought, including injunctive reliefs, compensatory damages and punitive damages; no limit on parties that can be sued or made part to the process including local, provincial or federal governments; public acceptance of class proceedings as an effective mean to redress tort, including those caused by the governments and its agents, and large contractual breaches; availability of public and third party financing; large rewards for class lawyers if they win; 11etc.

Based on my experience in class actions, the two most important factors that explain its success are:

1) The authorization to proceed is given by the courts on behalf of a group of absentees. In fact, the representative has only to establish the existence of class and the difficulty for its members to act together as a group of joint plaintiffs. The system does not require the members of the class to express consent to the proceeding or to join the class. In jurisdictions where this is not the case, very few class actions are initiated (see, for example, Italy);

2) The binding nature of the final judgment or judicially approved settlement on all the members of the class, except those who have opted out. This is a factor that often brings defendants to agree to settle and get judicial amnesty.

Because the representative is entitled to act on behalf of absentees, Court supervision is extensive to make sure that their interests are adequately protected throughout the process.

In addition, public notices, public records and access to the judge are critical to the due process of the class action proceedings for the class members, including the right to opt out or to oppose a proposed settlement. Thus the importance of adequate publicity and transparency at all critical steps to ensure the opposability of the judgment or settlement to all members of the class.

Finally, a defendant that faces a mass claim wants the option to appeal to a higher court should the class action be granted for millions of dollars. In each province, the final judgment in the class proceedings can be appealed as of right to the provincial court of appeal and on leave, to the Supreme Court of Canada. Errors of law and palpable and overriding errors of fact committed by the trial judge can be corrected.

Higher courts supervision provides the parties additional comfort in the class action process. Lawyers representing classes and defendants are almost unanimously resisting any attempt to reduce the appeal options during and after the class action certification.

3. CONTRASTING FEATURES OF ARBITRATION

Nine of the 10 provinces have adopted arbitration acts dealing separately with domestic and international arbitrations, generally modelled on the UNCITRAL Model Law for international commercial arbitration. 12

The National Assembly of Quebec and the Canadian Federal Parliament have adopted one legislation covering both domestic and international arbitration, based on the Model Law.

Incidentally, a case involving parties in two different provinces is considered an international arbitration under the principles of private international law in Quebec, but not in the other provinces.

In Canada, as in all countries that have applied the Model Law, arbitration is based solely on consent. It follows that a party cannot be bound by an arbitral award unless it specifically agreed to the arbitration process to solve the relevant dispute. In other words, opting-in to the arbitration process is essential.

Arbitration acts recognize parties’ autonomy to the point of choosing their arbitrators and the rules governing the resolution of their dispute to the exclusion of state courts. As a result, state courts cannot exercise supervision on a large scale.

One of the many reasons why commercial parties prefer arbitration to court proceedings is the confidentiality surrounding the process. It is often said that arbitration comes with a presumption of privacy and confidentiality. 13

Recognizing this, the new Quebec Code of Civil Procedure states that parties that opt for a private dispute resolution process and the third party assisting them undertake to preserve the confidentiality of anything said, written or done during the process, subject to any agreement between them stipulating otherwise. Of course, the arbitrator can express his reasoning in the award and enforcement or annulment procedures before a state court will require making public parts of the arbitration process.

Another often quoted reason for choosing arbitration is the finality of the process, with no time and money spent on appeals. However, in the nine common law provinces, following English law on arbitration, a limited right of appeal exists in domestic arbitration, but not in international arbitration where the sole procedure available is an annulment on the grounds listed in the Model Law. In Quebec, the sole recourse is annulment on the grounds listed in the Model Law.

4. SPECIFIC FEATURES OF CLASS ARBITRATION

Class-action arbitration, as it exists in the US, differs substantially from bilateral arbitration.

First, like some group arbitrations, it involves a large number of claimants, but mostly absentees. The representative does not have to identify all the members of the class and does not have to seek a mandate or proxy to act on other behalf. All that is required is the publication of adequate notices to a large audience.

This is a striking advantage compare to group arbitration. As an example, in the arbitration proceeding stemming from the global financial crisis and the 2013 bailout of Cyprus, it took more than a year to identify a group of about 700 Greek investors willing to file claims against the Republic of Cyprus. 14

Second, you need special rules to define the class, to determine the legal representative and to provide for the payment of the applicable administrative fees and the arbitrator’s remuneration and costs.

Third, the appointment of arbitrators may become as problematic as in multi-party arbitration proceedings or, at least, be more complex than in a bilateral arbitration.

Fourth, the process will inevitably imply the loss of the presumption of privacy and confidentiality. On this topic, Professor Strong writes: "[…] (indeed some arbitral institutions have already identified the various ways in which information about class, mass or collective proceedings should be made public), but the amount of publicity nevertheless appears to be more limited than in many types of litigation." 15

Finally, for the defendant, the potential financial exposure is magnified compared to a bilateral arbitration.

These differences are so significant that a general consent to arbitration does not suffice to give competence to the arbitration tribunal on a class claim, as the US Supreme Court held in Stolt-Nielsen:

(…) class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their dispute to an arbitrator.16

It follows that a class-action arbitration cannot be imposed on a defendant that has not specifically agreed to it. However, these differences with traditional two-party arbitration do not mean that class proceedings cannot be managed by arbitral institutions.

However, they require substantial amendments to the rules applicable to bilateral arbitration.

In 2003, the American Arbitration Association (AAA) enacted rules on class arbitration inspired from the American case law.

Regarding confidentiality, they currently provide:

9. Confidentiality; Class Arbitration Docket

(a) The presumption of privacy and confidentiality in arbitration proceedings shall not apply in class arbitrations. All class arbitration hearings and filings may be made public, subject to the authority of the arbitrator to provide otherwise in special circumstances. However, in no event shall class members, or their individual counsel, if any, be excluded from the arbitration hearings.

(b) The AAA shall maintain on its Web site a Class Arbitration Docket of arbitrations filed as class arbitrations. The Class Arbitration Docket will provide certain information about the arbitration to the extent known to the AAA, including:

(1) a copy of the demand for atbitration;

(2) the identities of the parties;

(3) the names and contact information of counsel for each party;

(4) a list of awards made in the arbitration by te arbitrator; and

(5) the date, time and place of any scheduled hearings.

Clearly, these rules attempt to make the process open and transparent.

Other rules provide for the appointment of the arbitrator by the AAA from a national roster of class arbitrators, the construction of the arbitration clause and the certification of the class. With regard to public notices, a critical element to the res judicata and to the enforcement of the award, Rule 6(a) states that class members shall be "provided the best Notice of Class Determination practicable under the circumstances."

According to the AAA Docket, there are now about 120 active cases pending before ICDR/AAA, most initiated between 2012 and now with the oldest one going back to 2002. None is described as an international class arbitration and 69 are employment related.

In contrast, each year, in the US Federal Courts, about 6,000 new class actions are introduced, excluding those filed before state courts. Thus, it seems that class action arbitration does not represent a substantial part of the class redress in the US.

In summary, class action arbitration is possible but it does require major adjustments to the usual arbitration rules, especially in connection with the appointment of arbitrators, the setting aside of confidentiality generally associated to the arbitration process and the sending of public notices.

It also requires a judiciary willing to support it, namely in enforcing class awards and refraining from using due process as an extensive concept to annul its procedural orders.

5. WILL CANADA BE THE NEXT FRONTIER?

In my view, this is not going to happen for various reasons.

I. Public Policy Reasons

There is clearly no momentum for class arbitration in consumer cases in Canada for public policy reasons.

On one hand, class action is widely seen as a mechanism to provide consumers with an effective tool to seek redress and have access to justice. It is free for the claimants since the representative’s counsel finances it or finds third party’s financing, and the process is effortless since said counsel drives it. For the governments it is an important means to strike a balance between consumers and large businesses, thus solving an important public policy concern at relatively low costs. 17

Since the process involves absentees, the governments are concerned about adequate protection of their interests. This public policy concern is considered best addressed by Canadian superior courts made of judges appointed for life. 18

Arbitration, on the other hand, is perceived as a private process managed by individuals and institutions that thrive on it. Moreover, arbitrators are lawyers often also acting as counsel in other cases and perceived as having an interest at stake in the process.

Arbitration is welcome in commercial disputes involving two commercial businesses freely consenting to it. However, there seems to exist among consumer groups and some lobbyists, a lack of trust towards private arbitration of consumer disputes pursuant to an arbitration agreement that is a part of a contract of adhesion imposed upon the consumers. 19

The perceived economic imbalance between the parties and the fear of a lack of real consent to arbitration are the source of distrust toward the private arbitration clauses provided in consumers’ contracts. Consumers’ reluctance is observed even in the United States where, according to a study, "the AAA may be more amenable to consumer plaintiffs than other venues" partly because "the AAA has adopted Consumer Due Process Protocols which strive for fundamental fairness." 20

This distrust cannot be better illustrated than by the quick responses of the provincial governments to the landmark decision of the Supreme Court of Canada in the Dell Computer case, 21where the highest court of Canada concluded that a Quebec consumer who bought a computer from Dell on the internet was bound to submit its dispute to an arbitral institution situated in Minneapolis, Minnesota, where forms in French were not available.

Concurrently, the two largest provinces of Canada, Ontario and Quebec, amended their Consumer Protection Act (CPA) to declare void and of no effect, a clause in a consumer contract providing for arbitration.

In Alberta, the CPA was amended to provide that such a clause must be approved by the government before becoming effective; to this day, none was ever approved.

In British Columbia, further to a judgment of the Supreme Court of Canada rendered after Dell, 22some provisions of the CPA have been interpreted as excluding arbitration in connection with certain redresses. So arbitration cannot offer access to all the possible remedies and it is therefore less attractive than class action.

In fact, there seem to exist a reluctance to have policy considerations decided by private arbitrators. Since CPA are essentially social legislation complementing policy consideration, arbitration is not perceived as an adequate process. This distrust for arbitration to deal with social issues is further illustrated by the reluctance in Europe and in the US Congress to leave investor-state disputes to private arbitrators, especially if there is no appeal option. 23

However, arbitration could be made the exclusive procedure available in commercial and corporate litigation. Nothing legally then prevents parties from agreeing to arbitration, including specifically a class-action arbitration in cases involving a group of clients or shareholders.

II. Commercial Reasons

It remains that in Canada, following an American trend, an arbitration clause is often used in a contract for the sale of products/services to prevent clients (subject to restrictions found in the relevant CPA) from initiating a class action or from being part of one.

In the US, an empirical study conducted by the Consumer Financial Protection Bureau (CFPB), released in March 2015, found that a majority of agreements regarding credit card loans, prepaid cards, payday loans, wireless third-party billing and checking accounts has an arbitration clause. 24The CFPB study further reported that nearly all the American arbitration clauses studied included provisions stating that arbitration may not proceed on a class basis.

On this point, two professors from University of California, who conducted an empirical study on approximately 5000 AAA consumer arbitrations, mention that: "the arbitration has displace litigation as the primary method by which consumers resolve disputes against companies." Commenting the study, Kaplinsky and Levin wrote: "Not only are these extreme assertions not supported by any facts or figures, but they contradict the study’s own statement that only a ‘handful of matters … trickle into the arbitration forum.’ […] The CFPB [Consumer Financial Protection Bureau] found that arbitration was a factor in only 8% of the 562 class actions studied." 25

In other words, the impact of arbitration clauses on class actions in the US remains a hot issue!

Following this pattern, many Canadians non-consumer contracts have an arbitration clause and some even include a specific waiver of the right to be part of a class action (though according to Canadian case law it is not necessary if there is a valid arbitration clause covering every and all potential disputes).

In contracts of adhesion, the expectation of the business providing the services/products is that for a relatively small amount of monetary relief, very few, if any, clients, especially commercial clients, will bother to send an arbitration notice and engage the expenditure of time or money for initiating an individual arbitration proceeding. Arbitration clause then become a shield against individual claims and class actions.

In such cases, it is not obvious why these services/products providers will agree to displace before an arbitration panel a class redress that they wish to avoid before a court. Moreover, why would they agree to a class redress without a possibility of an appeal. In fact, some businesses will rather have an arbitration clause with a waiver of class arbitration in their contracts.

III. No Appetite from The Court to Favor It

Failing the enactment of legislative provisions regarding class arbitration, the only way to provide parameters to class arbitration might be through the courts, in cases where there is no CPA provision preventing arbitration.

A court could, in a case where the non-consumer party bound by an arbitration clause asks to act on behalf of a class for compelling reasons, be called to consider the California Supreme Court approach in Keating v Superior Court26and of state courts in certain other US states.

Under this approach, the state courts authorize class procedures and notices, and approve settlements/awards, while arbitration tribunals decide the merit of the dispute and determine the remedies.

This would require a very creative bench and it would result in a rather complex solution with no governing rules except those made from time to time by the court.

It seems more likely that judges would try to find a way to invalidate the arbitration clause and to authorize a plain class action if the plaintiff qualifies to introduce one.

Professor Strong is of the view that "[…] [T]he situation does not require an all-in or all-out solution. Jurisdictions that are still undecided about the propriety of large-scale arbitration can adopt an intermediate step similar to that taken in Germany in cases involving corporate disputes." Indeed, the Federal Court of Justice of Germany (BGH) did not encourage or discourage collective arbitration but declared the dispute arbitrable and determined some basic procedural protections if ever the parties decided to move into arbitration proceeding. 27

IV. Practical Reasons

Finally, the arbitration provisions of all the relevant provincial legislation do not contemplate class arbitration. So the parties would have to provide in the arbitration clause the rules to be applied or agree to be governed by the rules of an organization providing for class arbitration (for example the rules of the AAA or JAMS).

Needless to say, the effectiveness of an arbitration award rendered further to a class arbitration to prevent an absent party to initiate an individual claim on the ground of res judicata would be challenged. Incidentally, it is not rare in Canada in national class actions heard in another province. This would be particularly true if the class arbitration was held outside Canada and the award was opposed to a Canadian resident.

In conclusion, the combination of these policy, commercial and practical reasons makes it unlikely that Canada will be the next frontier in class arbitration.

6. GROUP ACTIONS IN ARBITRATION

Despite the fact that Canada does not appear to be ready for class arbitration, nothing legally prevents group arbitration through a consolidation of pending cases or a joint demand in arbitration signed by a large group of plaintiffs when the parties agree.

However, consolidation without consent is a violation of party autonomy, of party’s right to appoint its own arbitrator or to agree to a procedure for such appointment and of the right to confidentiality related to the privity of the contract.

In most provinces of Canada but not in Quebec, a consolidation requires in addition an authorization by a court. 28Failing an agreement between the litigant parties, most courts will refuse to order a consolidation. Efficiency does not trump consent.

In fact, group arbitration is a procedural issue that should be addressed by the parties in the arbitration clause or by the rules of the selected arbitral institution (subject to limits imposed by the relevant domestic law).

It remains that group arbitration, when agreed or ordered under the rules applicable to the arbitration, does not alter the nature of the arbitration process which rests on consent or its features, such as confidentiality and the ability of each party to actively participate in the process, including the appointment of the members of the arbitral tribunal (or challenging an arbitrator proposed by the arbitral institution).

A potentially interesting field for group arbitration is shareholders’ claims. Some publicly traded companies are now considering including in their bylaws that a shareholder raising a claim against the company should turn to arbitration to the exclusion of any court. Then you could argue that every shareholder, when acquiring shares in the capital stock of the company, is agreeing to arbitration in the event of a future dispute.

Assuming this is considered a sufficient consent to arbitration and that group arbitration is not excluded specifically, large institutional investors could initiate an impressive group arbitration. In the case of publicly traded shares this option would be, of course, subject to limitations provided in the relevant securities acts.

7. CONCLUSION

There is a future for group arbitration in Canada, but not for class arbitration. On the latter, the situation in Canada seems to be closer to Europe than to the US, despite the fact that class actions US style are widespread north of the US borders.

1
Incidentally, it may reduce state expenses, a factor that governments appreciate.

2
Elie Kleiman, "The Future of Class, Collective and Mass Arbitrations in Europe, A European approach to collective redress" (2016), Dossier of the Institute [forthcoming in 2016 ].

3
Code of Civil Procedure, RLRQ, 2015, c C-25.01, s 1.

4
Stéphanie Vallée, Minister of Justice, Legislative Comment on Code of Civil Procedure, RLRQ, 2015, c C-25.01, s 1. Annotated Code of Civil Procedure (2015) (CAIJ) Translated from French : « Bien qu’elle ne soit pas contraignante au point de rendre irrecevable l’action en justice qui n’aurait pas été précédée d’une tentative de reglement, la disposition devrait, en raison de son caractere impératif, entraîner un changement important dans le rôle des juristes qui devraient désormais présenter a leurs clients un ensemble de possibilités pour la résolution des conflits.»

5
The source of modern class actions goes back to a 1966 amendment to rule 23 of the US Federal Rules of Civil Procedure, the rule governing the conduct of class actions in the US Federal Courts. The first class action act in Canada was enacted in Quebec in 1978. Ontario followed in 1992.

6
Doyer c. Dow Corning Corporation, 2008 QCCS 5746 (Quebec Superior Court)

7
Hotte c. Servier Canada Inc., [2002] RJQ 230 (Quebec Superior Court)

8
Létourneau c. JTI-MacDonald Corp., 2015 QCCS 2382(Quebec Superior Court awarding US$15 billion).

9
Collective recovery means that the judgment orders the defendants to pay an amount corresponding to the value of the claims of all the members of the class, independently of the number of claimants that may then complete the steps to collect their shares.

10
Certification is a judicial authorization to proceed with the class action, granting status to plaintiff to act on behalf of the class and ordering the publication of certain notices.

11
Fees are paid to lawyers before distribution to class members and subject to court scrutiny. Very few guiding principles so far, court’s approval being largely done on a case by case basis.

12
UNCITRAL Model Law for international arbitration, 1985 With amendments as adopted in 2006, UN doc A/40/17.

13
For example, see the US Supreme Court in Stolt-Nielsen S.A. v Animal Feeds International Corp., 130 S. Ct. 1758, [Stolt-Nielsen] at 1776.

14
Allan Ripp and Elise Martin, "Greek Investors Bring Legal Action against Republic of Cyprus, Alleging Deposits and Bonds Were Wrongly Confiscated Following Bailout of 2013", Online: (2015) PR Newswire at 5 <http://www.prnewswire.com/news-releases/>

15
Strong, SI, "Incentives for Large-Scale Arbitration: How Policymakers Can Influence Party Behaviour" (2016), Dossier of the Institute [forthcoming in 2016] p 5 [Strong, SI: How Policymakers Can Influence Party Behaviour].

16
Stolt-Nielsen, supra note 11 at 1775.

17
Refer to "Incentives for Large-Scale Arbitration: How Policymakers Can Influence Party Behaviour" (precited), from Professor Strong to know more about States’ incentives and disincentives to large-scale arbitration.

18
In fact, they must retire at 75.

19
For an example, see : David Horton and Andrea Cann Chandrasekher, After the Revolution: An Empirical Study of Consumer Arbitration, Georgetown Law Journal, vol. 104, 2015.

20
Id, at para 5

21
Dell Computer Corp. v Union des consommateurs, [2007] 2 S.C.R. 531.

22
Seidel v.Telus Communications Inc., 2011 SCC 15.

23
On this very issue, see also Elie Kleiman’s text, under the heading "Private interests and policy issues at a crossroads."

24
US, Consumer Financial Protection Bureau, Arbitration Study (Report to Congress, pursuant to Dodd–Frank Wall Street Reform and Consumer Protection Act § 1028(a), 2015)

25
Alan S. Kaplinsky and Mark J. Levin, "New empirical study of AAA arbitrations is a study in contradictions", Online: (2015) CFPB Monitor at para 3 < https://www.cfpbmonitor.com/>.

26
Keating v Superior Court, 645 P. 2d 1192.

27
S.I. Strong: How Policymakers Can Influence Party Behaviour, supra note 13 at p 13

28
See for example, section 27(2) of the International Arbitration Act of British Columbia.