For the 2015 Annual Meeting of the ICC Institute, the Council of the Institute decided to select the topic of class actions, group actions and mass actions.

Several decades ago, a typical arbitration would involve one claimant against one respondent. This has progressively changed. Over the years, it has appeared that many more cases were involving several claimants against several respondents. Today, one third of all international ICC arbitrations seem to involve multiparty cases, multi-contract cases involving multiple contracts, multiple parties, some of which may sometimes even be non-signatories of the arbitration agreement.

But it does not end there. The evolution has continued and the debate today is whether it would not be possible for a class of people being in the same situation or a group of citizens having the same interest to start one single arbitration procedure as a group or as a class.

It all started in the United States, which used to be the only country in the world whose legislation permitted a class of people having the same rights to defend, to start a class action in court. The system may have some advantages, but over the years it has also attracted a lot of criticism, in particular the fact that those who in the end were the main beneficiaries of the class actions were the lawyers who were making fortunes at the detriment of their clients. This is why banks and other businesses began using arbitration clauses in their standard form contract as a way to reduce the risk of class action litigation. In other words, they thought that by inserting an arbitration clause in their contracts, only individual procedures could be initiated at the exclusion of class actions. But as evidenced by the Supreme Court decision in Green Tree Financial Corporation v Bazzle, this proved ineffective. If the relevant arbitration clause is adequately drafted, class-wide arbitration is possible even if it raises a number of delicate issues and practical concerns. Following the Bazzle decision, the American Arbitration Association has adopted supplementary rules for class arbitration and we have subsequently seen a substantial development of class-wide arbitration in the United States, and at a same time, a great number of court decisions on issues such as whether silent clauses constitute or not agreement to class arbitration or whether class arbitration waivers are valid or unconscionable.

In Europe, nothing comparable to the American class action existed for a long period of time. But things have changed these recent years, in particular under the influence of the European Union which over the past few years has adopted a global framework for collective redress and alternative dispute resolution in several sectors. In its recommendation of 11 June 2013, the Commission has stated that all member states should have collective redress mechanisms at national level for both injunctive and compensatory relief by 26 June 2015. And in fact, by 2011, 16 member states of the European Union had already implemented collective redress mechanisms. It remains that what has been implemented in several European states is not comparable to what is existing in the United States. Collective redress within the European Union generally takes the form of a group action or a collective interest action and not a class action. In a group action, each member of the group is an individual party to the procedure. In a collective interest action, a party represents a collective interest and only the representing party can be considered as a party to the proceeding. A class action is totally different. The class is structured through an opt-in or an opt-out mechanism, following which all members of the class are considered to be party to the proceeding. The members of the class are represented by a class representative and do not conduct any longer individual claims. Moreover, as will be explained by the speakers on the topic, the legislations on group actions vary considerably from one European state to the other.

Finally, the idea of collective actions has also penetrated the area of investment arbitration. In recent years, we have seen investment treaty tribunals commonly accepting jurisdiction over claims of multiple, unaffiliated parties relating to the same host state measure; but also the emergence of mass claims, the leading case being Abaclat v Argentina where, as of the date of its initiation, there were on claimants’ side over one hundred and eighty thousand individuals and corporations.

The Institute found therefore that there was great interest in devoting a seminar to the topic of class actions, group actions and mass arbitrations. Is there a place for such proceedings within the framework of the arbitration process? In the affirmative, how can or should such proceedings be organized and conducted? What lessons can be learned from the experience of such cases both in North America and elsewhere and what does the future possibly hold?

To address these issues, we were fortunate to be able to gather a wonderful group of experienced speakers. "A tout seigneur tout honneur", the first section was devoted to the North American experience of class arbitration. How has the law and practice concerning class arbitration developed in the United States since the Supreme Court decision in Bazzle? And how has the law and practice in this area developed in Canada? And what are the prospects for class arbitration in those two countries in the coming years? Taking into consideration the existing case law, what drafting techniques should be used by the parties wishing to provide for class arbitration in an arbitration agreement? This first session was moderated by John Fellas. The speakers were James Carter, Prof. Christopher Drahozal and Prof. Genevieve Saumier.

The second session focussed on collective arbitration and the European experience. As mentioned above, efforts have recently been made in Europe, in particular in certain countries like Spain and Germany to make collective or group arbitrations possible in certain contexts. What is the nature of those developments and related experience? How do they differ from class arbitration in North America? What other initiatives are being considered in Europe? Are these developments to be welcomed? These questions were addressed by Philippe Billiet, Christian Borris and Prof. Laura Carballo, the moderator of the session being José Miguel Judice.

The first afternoon session was devoted to investment arbitration and the issue of mass arbitrations. What are the jurisdictional and other legal issues that have been raised by these cases? How can they be conducted to ensure due process to all of the parties? What types of disputes may be suited to collective resolution in an investment treaty context and what are the principal obstacles that may be confronted? The speakers of this session, moderated by Eloise Obadia, were Prof. Zachary Douglas, Carolyn B. Lamm and Prof. Luca Radicati di Brozolo.

The seminar was concluded with the traditional round-table discussion, in this case, on the future of class, collective and mass arbitrations. Are they a marginal phenomenon or has their potential yet to be realized? What are possible solutions to the issues that have been encountered? Can we expect to see more of such arbitrations in the future? These issues were addressed by Sir Franklin Berman, QC, Pierre Dalphond and Elie Kleiman. They were moderated by the leading specialist of class arbitrations, Prof. S.I. Strong.

Finally, the conclusions of the seminar were presented by Eric Schwartz.

The event was a great success due to the efforts of many people who deserve our warm thanks: the ICC Council and, in particular, its president, Yves Derains; Eric Schwartz, who co-organised the seminar; Sybille de Rosny and Katharine Bernet and their whole team at the Institute, who took charge of the organisation; and of course the speakers whose contributions are published in this volume. Their presentations were excellent. They have made a great contribution to the topic.