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Mass procedures as a form of "regulatory arbitration"- Abaclat v. Argentine Republic and the international investment regime.

V. Regulatory Arbitration in the Investment Context

Before considering the extent to which Abaclat v. Argentine Republic constitutes a form of regulatory arbitration, it is necessary to describe briefly the current debate regarding the extent to which the international investment regime constitutes a form of global regulation. (270) Differences of opinion appear to exist at both the practical and theoretical levels.

Practically speaking, there seems to be some disagreement about the extent to which international investment agreements are substantively similar. While commentators universally agree that there is a significant number of instruments concerning international investment, (271) people frame the content of these instruments differently. For example, some observers claim that the various treaties share "a surprising pattern of common features," suggesting that "a common law of investment protection" is in the process of developing. (272) Other experts believe that "there is so much divergence in the standards in bilateral investment treaties that it is premature to conclude that they give rise to any significant rule of international law." (273) While this Article does not focus on issues of substantive concern and therefore will not delve further into this debate, the amount of similarity between the various treaties and international agreements is relevant to this discussion to the extent that such similarities affect (1) determinations about the extent to which international investment law constitutes an independent regulatory regime (274) and (2) considerations regarding the viability of multinational class, mass, or collective proceedings. (275)

Differences of opinion also exist at a theoretical level. Some commentators espouse what has been called the "liberal internationalist" view of investment law, which holds that "investment arbitration should be treated as a unique, internationally-organized strand of the administrative law systems of states" because "[t]he subject matter of investment arbitration is a regulatory dispute arising between the state (acting in a public capacity) and an individual who is subject to the exercise of public authority by the state." (276) This conclusion appears to be supported by the fact that "the regime of investment arbitration [is] established by a sovereign act of the state" as well as by the fact that investment arbitration is "designed to resolve disputes arising from the exercise of public authority." (277)

Under the liberal internationalist view,
   the underlying purpose of international investment law is ... to
   provide a global regulatory environment favourable to
   investors--that "the system of international investment arbitration
   ... has been set up as one of the major new tools in improving good
   governance in the global economy." From this
   perspective, ... international investment law may be characterized
   as public law, serving private interests. It is a development of
   international public law, because it is a universal regime focused
   on regulating the exercise of state powers. But it serves private
   interests, because its principal goal is to liberate investors from
   state regulatory control, and maximize the freedom of global
   capital movements. (278)


The fact that "most regulatory disputes are adjudicated by domestic courts in accordance with domestic law, or by a specialized domestic tribunal subject to supervision by domestic courts," is not problematic for those adhering to the liberal internationalist perspective because "the general consent authorizes the adjudication of regulatory disputes by an international tribunal." (279) Thus, people adopting this view say that the investment regime requires (or shortly will require) "a system of compulsory arbitration against States for all matters relating to international investments, at the initiative of the private actors of international economic relations." (280)

This approach to investment arbitration is fiercely opposed by persons espousing the "sovereigntist" perspective, which "doubt[s] the inherent desirability of free global markets and internationalized regulation" and instead emphasizes "the values of nationalism, state sovereignty, and the need to protect the internal domain of states, their domestic policies and culture." (281) Proponents of this position consider the existence of an international regulatory regime as much more doubtful and, to the extent such a regime exists, much more limited in scope, given that the investment arbitration regime is not meant to protect every type of economic transaction that could possibly arise. (282)

Detailed analysis of the two theoretical views of investment arbitration is beyond the scope of this Article. (283) However, it is useful to note that it may be impossible to determine which approach is ultimately "correct" as a matter of treaty interpretation because the debate reflects "deeper uncertainties underlying international investment law" and, as such, may not be "susceptible to technical or doctrinal solutions" alone. (284) Therefore, other sorts of analyses--such as the one in this Article--may be necessary to provide alternative perspectives on various issues, including questions relating to the propriety of mass procedures.

These theoretical concerns are not just fodder for academic debate. Instead, the two views of investment arbitration have practical ramifications and are in fact reflected in the jurisdictional awards rendered in Abaclat, with the majority siding with the liberal internationalists and the dissent aligning itself with the sovereigntists. (285) This is both intriguing and important, since it suggests future cases involving mass investment claims could be subject to the same kind of ideological divisions.

Having put Abaclat in its proper context, it is time to consider whether and to what extent the mass procedures proposed in Abaclat constitute a form of regulatory arbitration independent of any regulatory aims that might or might not be associated with investment law as a general proposition. (286) The analysis considers each of the three elements necessary to establish regulatory litigation and regulatory arbitration separately: intent, a pre-existing substantive norm, and a rule or remedy that provides a forward-looking effect. (287)

A. Intent

The first aspect of the test for regulatory litigation and arbitration, intent, requires "not only the desire to influence behavior as the conscious object of the one who would regulate, but also the desire to prevent some future, risk-producing behavior." (288) This element could be problematic for those attempting to frame Abaclat as a form of regulatory arbitration, at least to the extent that the focus is on the intent of the arbitrators.

On the one hand, the majority clearly indicated that "[c]ollective proceedings are ... consistent with the purpose and object of the BIT." (289) While this statement is in many ways helpful, it does not express an intent to regulate or deter. In fact, the majority appeared to downplay the forward-looking (i.e., regulatory) effect of its award, stating explicitly that its decision regarding the use of mass proceedings was not intended to act as a form of procedural precedent (290) and denying that it had taken any policy considerations into account when determining the various issues, indicating instead that the outcome was based on a strict reading of the BIT itself. (291)

In many ways, the absence of any visible regulatory intent in the Abaclat majority award is not surprising. (292) While it is possible that an arbitral tribunal could indicate an intent to regulate certain behavior, it is more likely that arbitrators will disguise or deny any regulatory aims in large-scale arbitration, given the U.S. Supreme Court's recent criticism of policy-driven awards in the context of an international class arbitration. (293) While arbitrators in investment proceedings are not bound by U.S. precedent, (294) panelists who are concerned about protecting their awards are unlikely to include controversial elements that may result in an annulment.

However, regulatory intent does not rely solely on the mentality of the court or tribunal. (295) Instead, the necessary intent can be provided by the litigants. (296) All that is necessary is that the actor providing the requisite intent "intend[s] to produce some action on the part of the target of regulation because of the risk (and the litigant's or judge's apprehension of the risk) that the target actor's future behavior will fall short of the relevant norm." (297)

Taking the burden of regulatory intent off the arbitrators opens the door to some interesting analysis. For example, a state respondent could be said to have provided the necessary regulatory intent to the extent investment arbitration can be framed as a regulatory mechanism. (298) This approach would take any general regulatory intent that already exists in investment arbitration and carry it over to disputes involving class, mass, or collective claims, thus eliminating the need to show any additional specific intent to use large-scale litigation procedures in a regulatory manner. (299) While this technique is not recommended for general use, since it triggers the potentially irreconcilable division between the liberal internationalist and sovereigntist views of investment arbitration, it does provide food for thought. (300)

Another, more likely possibility is that the claimants in an investment proceeding have supplied the necessary intent. (301) As it turns out, the bondholders in Abaclat appear to have had a type of regulatory intent in mind when they filed their arbitration, based on their statements that "[t]he major threat to the efficiency of foreign debt restructuring [is] rogue debtors, such as Argentina. Consequently, opening the door to ICSID arbitration would create a supplementary leverage against such rogue debtors and therefore be beneficial to the efficiency of foreign debt restructuring." (302) While the dissent disagreed with the propriety of the claimants' use of investment arbitration as a means of creating "leverage over sovereign debtors," the dissent did not dispute that that was the claimants' aim. (303) Therefore, it would likely appear that the necessary regulatory intent existed in Abaclat.

Although Abaclat meets the first element of the test for regulatory arbitration, the analysis may not be as clear-cut in future investment disputes. In those cases, it may be useful to recall that some commentators believe that specific intent on the part of the parties, judge, or arbitral tribunal need not be established so long as there is a regulatory effect. (304)

Interestingly, analyses that rely solely on regulatory effects can be reframed as involving intent, although in these cases the intent would not be that of the litigants, judge, or tribunal, but instead that of the legislature in private disputes or the state parties to the relevant investment agreements in investment disputes. This analysis essentially comes down to a question of institutional design, based on the notion that the legislature in domestic disputes or the states parties in investment disputes have intended litigation or arbitration to act as a regulatory device within the legal system in question. (305) Although this process may appear to be largely a matter of semantics, reframing the issue as one of intent can provide a helpful response to certain questions relating to privity.

Regulatory litigation arises out of the notion that private parties and judges can "use[] litigation and the courts to achieve and apply regulatory outcomes to entire industries." (306) However, some people, such as the dissenting panelist in Abaclat, may take the view that it is inappropriate to look to party or arbitrator intent when considering the propriety of regulatory arbitration in the investment arena because private individuals and arbitral tribunals are not themselves parties to the international agreements underlying the arbitral proceeding in question, nor do these persons stand in privity with one of the state signatories to the agreement. (307) Under this analysis, arbitrators' and litigants' desire to use the agreements as the basis for regulatory litigation and arbitration would be irrelevant, since it is the states' intent at the time the documents were drafted that controls. (308)

Issues relating to privity in investment arbitration have been raised before, with the most well-known response coming from Jan Paulsson, who took the view that requiring a strict rule of privity in investment arbitration would be "unworkable" and that the regime was therefore based on the concept of "direct action," which "allows the true complainant to face the true defendant." (309) Given contemporary interpretations of the purposes and practice of investment arbitration, strict application of the concept of privity to questions of regulatory intent would appear equally inappropriate. (310)

Strict application of the concept of privity is often related to the debate about the "original intent" of treaties and other international agreements. While some people, including the dissent in Abaclat, take the view that the original intent of the state parties should govern the interpretation of the treaties in all future cases, (311) other interpretive techniques also exist. For example, Jose Alvarez takes the view that
   [t]he "original intent" behind the signing of BITs is, as time
   passes, increasingly irrelevant--as subsequent events and actions
   triggered by the ratification of BITs and FTAs, including changes
   in local law, occur, and as other opportunities for states to
   demonstrate their views and to react arise. It is these, not the
   original intention of BITs, which are relevant to determinations of
   state practice and opinio juris. (312)


This more flexible approach to treaty interpretation is quite useful for proponents of regulatory arbitration. If investment arbitration is seen as incorporating a certain amount of flexibility so as to be able to respond to certain types of unanticipated risk, (313) then the use of regulatory litigation techniques such as class, mass, and collective procedures can be seen as consistent with investment law's institutional design. (314)

The concept of legislative intent could also be useful in overcoming other difficulties involving regulatory arbitration in the investment arena. For example, some disagreement exists as to whether the requisite regulatory effect needs to be felt only by the individual respondent or whether the effect must be experienced on an industry-wide level. (315) Requiring a broad regulatory effect could be problematic for arbitration, since that effect is typically generated through publicity associated with a negative determination on the merits (or the threat thereof) (316) and arbitration is commonly considered to be a private and confidential process. (317) While the perceived "right" to privacy and confidentiality is often overstated, (318) parties may nevertheless argue that their expectation was that the process would be private and confidential rather than public. (319)

Contract-based forms of arbitration have addressed this concern in a variety of ways, either by judicial recognition of a public policy exception to the concept of arbitral privacy in certain limited circumstances (320) or by explicitly requiring all awards relating to class arbitration to be made publicly available. (321) However, similar problems do not arise in the investment context, since many investment awards are already made public as a matter of course. (322) This suggests that class, mass, or collective awards can be published (and thus can provide industry-wide regulatory effects) in the investment realm without any change to current procedures.

It is also possible to view the routine publication of arbitral awards in investment arbitration as a form of legislative intent to regulate the field of international investment. (323) Indeed, the increasing reliance on precedent in investment arbitration could be taken as supporting the notion that a form of regulatory litigation is in the process of developing, since precedent identifies the parameters of acceptable behavior on a going-forward basis and thus deters (or regulates) socially undesirable behavior. (324)

Therefore, intent does not appear to be a problem in Abaclat or for most investment arbitrations. As such, one element of the three-prong test for regulatory arbitration is satisfied.

B. A Substantive Norm

The second part of the test for regulatory litigation and arbitration involves the existence of a pre-established substantive norm. In some ways, this requirement may seem strange, since parties in all forms of litigation and arbitration need to base their claims on some sort of pre-existing substantive law. (325) However, regulatory litigation and arbitration use these substantive norms in a special, forward-looking manner so as "to produce some action on the part of the target of regulation" that will reduce "the risk (and the litigant's or judge's apprehension of the risk) that the target actor's future behavior will fall short of the relevant norm." (326)

The means by which this forward-looking objective is achieved is described in Part V.C. (327) However, the existence of this second element--a substantive norm--is easily met in investment arbitration, since the treaties and agreements that create the international investment regime contain a variety of substantive rules that are to be enforced through arbitral proceedings. (328) This is true even in cases such as Abaclat, which involves a number of novel substantive claims. (329) Although the parties may disagree about the precise nature of the relevant norms and the extent to which they apply to the dispute in question, it is clear that the requisite rules exist and can be enforced through the arbitral proceedings. (330) Therefore, the second element of the test for regulatory arbitration is satisfied as well, both in Abaclat and in investment arbitration more generally.

C. A Rule or Remedy

The third part of the test for regulatory litigation and arbitration involves the existence of a rule, typically in the form of a remedy, "that expresses the [substantive] norm to the world and attempts to limit the threats (risk) to that norm." (331) This requirement may be the most difficult for Abaclat to meet, given the novelty of mass procedures in investment arbitration (332) and the relative silence of the various treaties in question. (333) Each of these concerns is addressed separately below.

1. Issues Relating to Novelty

a. Procedural Inquiries

Issues relating to the novelty of class, mass, or collective procedures in investment arbitration can be analyzed in several different ways. One line of inquiry focuses on whether these types of large-scale procedures are really all that different from what the respondent might otherwise have expected. While much has been made of the fact that Abaclat constitutes the first time a mass claim has been brought in investment arbitration, (334) some commentators see very few "differences between the workings of the class action or class arbitration system and that of investment arbitration," since "[b]oth are characterized by ... multiple claimants against one respondent, be it a tobacco company in the case of class actions, or a state in investment arbitration." (335)

The multiplicity of potential claimants in investment arbitration arises as a result of "the 'standing offer' consent mechanism in BITs, which provides no indication of the number, scope and type of claims that the state is likely to face." (336) This allows multiple investors "to bring their respective claims how and when they see fit" and leaves the respondent state open to multiple claims from an unknown number of parties. (337) Therefore, the identity of the various claimants cannot be problematic, since all of these individuals could have brought their claims in bilateral proceedings. (338)

Although the common understanding of investment arbitration as constituting an offer to arbitrate (339) resolves one potential problem (the question of "with whom" respondents are required to arbitrate), difficulties might also arise with respect to the types of claims at issue (the question of "what" respondents are required to arbitrate) and the procedures to be used (the question of "how" claims are to be resolved). (340) Interestingly, there may be sufficient similarities between certain types of class, mass, or collective arbitrations on the one hand, and bilateral arbitrations on the other, so as to avoid allegations that the respondent could not anticipate the rule or remedy at issue. (341)

For example, the question of "what" is being arbitrated is largely unproblematic in situations involving homogenous claims, since those cases present the respondent with what is effectively a single substantive claim. (342) While certain adjustments might need to be made in cases where some claims or defenses apply to one group of claimants but not another, that type of situation can often be resolved through the use of subclasses, as suggested by the Abaclat majority. (343) Therefore, "[a]ssuming that the Tribunal has jurisdiction over the claims of several individual Claimants, it is difficult to conceive why and how the Tribunal could loose [sic] such jurisdiction where the number of Claimants outgrows a certain threshold." (344)

The most difficult question involves how mass claims are to be resolved. As the majority in Abaclat recognized, mass claims can require certain alterations to the arbitral procedures. (345) While no decisions have yet been made as to which, if any, of the various options discussed in the jurisdictional award in Abaclat will ultimately be adopted, the dissent took the view that all of the proposed procedures were entirely novel in the investment arena and therefore inappropriate. (346)

Detailed analysis of whether and to what extent mass procedures in Abaclat change how investment claims are heard will have to wait until the tribunal makes a final determination about the procedures to be used. (347) Nevertheless, some prospective arguments can be anticipated and addressed even at this early stage.

For example, opponents to large-scale litigation techniques often argue that mass procedures "change the nature" of investment arbitration in some way, based on certain expectations about what arbitration is supposed to be. (348) Indeed, such assertions have been made in Abaclat and will likely arise in other investment disputes. (349) However, such allegations must be considered pursuant to the objective legal standards governing the arbitral proceedings in question rather than by reference to the parties' subjective expectations, unless those subjective understandings have been reflected in the governing legal instruments. (350)

Furthermore, some of the ways in which large-scale arbitration may be said to "change the nature of arbitration" are unavailing in the investment context. (351) For example, the argument that arbitration is supposed to reflect a certain amount of procedural informality (352) is unlikely to be raised in investment arbitration, which is itself quite formal. (353) Similarly, parties in mass arbitrations such as Abaclat will be unable to argue that the procedures in question are unexpected because of their representative nature, since the claims in question have been asserted on an aggregative basis. (354) Furthermore, claims that arbitration is "supposed to be" bilateral in nature (355) can be answered with references to the various multiparty proceedings that have been filed in the investment arena in the past. (356)

Although the parties in Abaclat can argue that mass proceedings were unexpected in their case, it will be increasingly difficult for parties to make that claim going forward, since the investment community is now on notice that large-scale claims may be brought under an investment treaty. (357) It is possible that arguments regarding novelty or surprise may be made for some years to come, since some state respondents may take the view that they are not able to conclude an agreement to exclude large-scale arbitral proceedings in the short term. (358) However, a number of commentators have noted the ability of states to respond to changing circumstances and to make appropriate changes in their investment laws and agreements, so allegations about the difficulty of amending international agreements must be considered with a degree of caution. (359)

Another way to analyze the novelty issue would be to consider whether the procedures proposed for use in Abaclat and similar proceedings are well known in other types of litigation or arbitration, even if the procedures in question have not yet been used in the investment context. For example, a number of means of facilitating the presentation of evidence that were discussed in Abaclat have been used in other class, mass, and collective proceedings. (360) Other time-saving devices have been used in complex bilateral litigation and arbitration. (361) Therefore, determinations about the novelty of certain mechanisms may turn on what judicial or arbitral procedures are chosen as comparators. (362)

At this point in the analysis, Abaclat appears to pass muster, since the proposed procedures do not yet appear so novel as to be entirely unexpected. However, it is possible that the arbitral tribunal could adopt procedures that are entirely unanticipated. In that case, it may be necessary to consider the issue of novelty from a different angle.

b. Risk-Related Issues

The preceding discussion focuses on questions of novelty from a procedural perspective. However, novelty can also be analyzed as a function of risk. In many ways, this may be the more appropriate inquiry, given that regulatory litigation has been framed herein as a means of protecting individual citizens from unanticipated risk. (363)

The concept of "unanticipated risk" can be considered from a substantive or procedural perspective. Normally, it would appear as if an unanticipated risk could not arise as a substantive matter, since the second prong of the test for regulatory litigation and arbitration requires the existence of a pre-established substantive norm. (364) However, an exception to this general rule may arise in the context of investment arbitration.

Abaclat provides an excellent example of this phenomenon. One of the issues raised in the dispute involved the extent to which the relevant treaties applied to sovereign bonds. (365) The assertion of this claim as a matter of first impression was justified by the claimants on the grounds that "opening the door to ICSID arbitration would create a supplementary leverage against ... rogue debtors and therefore be beneficial to the efficiency of foreign debt restructuring." (366)

The dissent opposed this approach, stating that
   [i]n order to create ... leverage over sovereign debtors, which the
   ICSID Convention did not foresee and which financial markets did
   not contemplate, then or now, the majority award fashions an
   unprecedented procedure for adjudicating the present claim of more
   than 60.000 [sic] holders of Argentinean debt, out of ... the
   tribunal's gap-filling powers under article 44 of the ICSID
   Convention. Driven in part by controversial policy considerations,
   hidden behind references to the spirit of the ICSID Convention and
   the purpose of the BIT, the majority award ... adopt[s] the
   Claimant's policy arguments over the Respondent's. (367)


Although observers will come to different conclusions as to whether the majority's decision was proper under the relevant treaties, the important issue for the current discussion is the way in which the dissent appears to characterize the majority award as using procedural mechanisms in conjunction with a pre-existing substantive norm as a means of addressing an unanticipated risk of harm. (368) This neatly encapsulates both the method and purpose of regulatory litigation and arbitration (369) and thereby suggests that investment arbitration may be capable of addressing unanticipated substantive risks through techniques associated with regulatory arbitration. (370)

The second type of risk analysis is more common. Here, the unanticipated risk refers not to the type of injury (as was the case with the preceding example), but instead to either the scope of injury (such as an unanticipated volume of harm) or the nature of the injury (such as an unexpectedly low value of each individual claim). (371) In these situations, the state anticipated a particular type of harm (described in the relevant substantive norm) but did not anticipate the possibility that the method of addressing the harm (i.e., standard bilateral litigation or arbitration) would be incapable of sufficiently deterring the behavior in question. This scenario can be described as involving an unanticipated procedural risk, since certain unexpected aspects of the injury lead to the need to use a particular procedural mechanism (i.e., class, mass, or collective techniques) to provide an adequate legal response. (372)

Allowing regulatory litigation techniques in situations like these provides flexibility in regulatory matters, in that the state enacting the relevant national law or adopting the relevant investment treaty only needs to identify a particular type of unlawful behavior and not all of the various ways in which that behavior may cause harm. (373) The Abaclat majority appears to accept this notion, based on statements indicating that
   [t]he need for certain adaptations to the standard ICSID
   arbitration procedure merely derives from the impossibility to
   anticipate all kinds of possible investments and disputes, and is
   certainly not a sufficient motive to simply close the door of ICSID
   arbitration to investors who are not "standard investors" having
   made "standard investments." (374)


Flexibility may be particularly appropriate or necessary in international investment arbitration, given the practical difficulties associated with amending multilateral agreements once they are in place. (375) However, flexibility needs to be tempered with predictability if the investment regime is to operate efficiently. (376) While it is always difficult to balance these two principles, parties and arbitrators should not be excessively fearful of exercising an appropriate degree of flexibility, since political actors always have the last word regarding regulatory litigation and arbitration. (377)

A second type of procedural risk involves the possibility of inconsistent awards. (378) Some commentators in the investment arena have noted that "the individual adjudication of investment disputes can lead, and has led, to 'inconsistent ... adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.'" (379) Indeed, "[o]ne need look no further than the Lauder and CME cases to put to rest all doubts that this 'risk' has indeed become a reality in investment arbitration, and [that class, mass, or collective proceedings] would do much to provide the legislative groundwork to prevent this from occurring again." (380) This has led some commentators to ask whether a class model of investment arbitration could constitute "a potential solution to the current problem of multiplicity of proceedings and general incoherency in international investment dispute resolution." (381)

Class and collective actions have long been used in the judicial realm as a means of avoiding inconsistent judgments, although these procedures appear to be justified primarily as a matter of efficiency rather than pursuant to any sort of regulatory rationale. (382) However, framing the analysis as a function of risk could provide an interesting means of addressing concerns about the novelty of mass procedures in investment arbitration, since it would provide a principled reason for allowing large-scale litigation techniques to be used in situations such as that presented in Abaclat. (383)

Framing the issue as one of unanticipated risk resolves many of the problems associated with the claim that the procedures proposed in Abaclat are too novel to qualify as the sort of rule or remedy contemplated by the third prong of the three-part test for regulatory litigation and arbitration. This sort of analysis may also be useful in overcoming issues in future mass claims arbitrations. However, it is still necessary to address issues relating to silence.

2. Issues Relating to Silence

The second major problem with respect to class, mass, or collective proceedings in the investment context involves the silence of the governing instruments regarding large-scale dispute resolution devices. (384) This is a potentially fatal concern under the third element of the test relating to regulatory litigation and arbitration, which requires a rule, typically in the form of a remedy, "that expresses the [substantive] norm to the world and attempts to limit the threats (risk) to that norm." (385)

In the quintessential form of regulatory litigation, the U.S. class action, the regulatory remedy is embodied in judicial rules of procedure and is therefore known prior to the initiation of any individual action. (386) This would suggest that any legal system (including the international investment regime) that does not explicitly provide in advance for class, mass, or collective mechanisms cannot adopt a form of regulatory litigation or arbitration that relies on one of these sorts of large-scale litigation techniques.

However, the historical development of class arbitration in the United States suggests an alternative means of analyzing the issue. (387) While contemporary forms of class arbitration rely largely on certain pre-existing arbitral rules that function in a manner somewhat similar to that of judicial rules of procedure, (388) class arbitration was available in the United States for approximately 20 years prior to the adoption of the first set of procedural rules. (389) In those early cases, class arbitration was not based on any specific legislative or procedural authority but instead constituted a particular type of remedy responding to a unique and previously unanticipated legal scenario (i.e., the existence of an arbitration agreement in a situation where a class claim could be and had been asserted). (390) In those situations, class arbitration was sometimes considered to be the best option available, since "an order for classwide arbitration ... would call for considerably less intrusion upon the contractual aspects of the relationship." (391)

The historical evolution of class arbitration in the United States therefore suggests that a form of regulatory arbitration could develop in the investment context even in the absence of any specific provisions in the relevant treaties or procedural rules discussing class, mass, or collective procedures. Critics will likely oppose this proposal, arguing that the development of class arbitration in the United States was possible only because the United States: (1) explicitly embraced the concept of large-scale litigation prior to the development of class arbitration, (392) (2) had a longstanding familiarity with class proceedings in the judicial context and thus had created a social and legal environment where class proceedings were not unexpected, (393) and (3) is a common law jurisdiction that permits incremental change through judicial action. (394) Because parties to most (though not all) international investment arbitrations will not (1) have a commonly agreed regulatory mechanism already in place in their national judicial systems, let alone in their investment treaties, (2) share similar views as to the propriety or shape of regulatory litigation, let alone regulatory arbitration, (395) and (3) follow the common law legal method, allowing a form of regulatory arbitration to develop informally in investment disputes is inappropriate in the absence of explicit legislative or state action. (396)

There are a variety of ways of responding to these concerns. (397) For example, it could be said that widespread international consensus regarding the availability, shape, or use of large-scale litigation techniques is unnecessary and that the only countries whose views should be considered are those that are parties to the international agreements underlying the proceeding. (398) However, even this sort of limitation could lead to a situation where, as in Abaclat, one or more of the states at issue do not provide for collective redress for the type of injury in question. (399)

Some people may believe, along with the dissent in Abaclat, that the absence of any large-scale mechanism in national courts is irrelevant so long as a bilateral remedy is available as a matter of national law. (400) However, other people may see the absence of a class, mass, or collective remedy as violating the duty to provide fair and equitable treatment pursuant to the terms of the relevant investment treaty (401) or alternatively as breaching the right to an effective remedy as a matter of natural justice. (402) Given that some commentators believe that "[t]he protection offered to investors by the dispute resolution provisions of treaties is sufficiently important to rise to the level of a substantive principle in its own right," (403) the failure to provide some sort of realistic remedy would be highly problematic. (404)

In such cases, the question would ultimately turn on a factual determination of whether a class, mass, or collective action was the only way to provide an effective remedy, even in the absence of a specific treaty or procedural provision specifically discussing such a procedure. (405) In Abaclat, the majority suggested that "the rejection of the admissibility of the present claims may equal a denial of justice," which would "be shocking given that the investment at stake is protected under the BIT, which expressly provides for ICSID jurisdiction and arbitration." (406) Other investment tribunals may come to a similar conclusion under other investment agreements.

Objections to class, mass, or collective procedures could also be raised on constitutional grounds, in that some legal systems view certain types of large-scale litigation and arbitration techniques as violative of parties' individual participatory rights. (407) As such, an investment tribunal might not be seen as capable of setting these constitutional protections aside. (408)

These types of constitutional concerns have been implicated most frequently in cases involving opt-out representative relief, since those procedures allegedly infringe on the plaintiffs' or claimants' right to choose when, where, and whether to pursue a legal claim. (409) Cases involving opt-in or aggregative relief may experience fewer difficulties in this regard, although respondents may still argue that their right to mount an individualized defense would be hindered in any sort of group proceeding. (410) While this issue does not appear to be problematic in Abaclat, given the homogeneity of the claims at issue and the presence of specific individual consent on an opt-in rather than opt-out basis, the matter bears further analysis. (411)

Therefore, although issues relating to novelty and silence create a number of significant concerns under the third prong of the test for regulatory litigation and arbitration, Abaclat appears to fulfill the necessary requirements. (412) This determination is based on, among other things, the vital importance of the right to an effective dispute resolution mechanism in the investment context (413) and the virtual inability of claimants to seek recovery through other means. (414) The conclusion is further bolstered by the rapid increase over the last ten years in the number and diversity of mechanisms for collective redress in judicial and arbitral fora around the world. (415) Given these developments, it is difficult to argue that a similar mechanism could not have been expected to arise in the investment arena. Indeed, the fact that class, mass, and collective redress has become so prevalent in such a short amount of time strongly suggests that society is currently undergoing something of a quantum shift with respect to the type of legal injuries that are being experienced domestically and internationally. As the types of harm evolve, so, too, must the legal responses, both as a matter of public and private law.

VI. Conclusion

The jurisdictional award in Abaclat v. Argentine Republic is, with the dissenting opinion, one of the most important decisions to arise in the investment arena in decades. Although Argentina will likely seek annulment of the award after the conclusion of the merits phase, (416) the effect of the award is already being felt throughout the international community. Regardless of the future outcome of Abaclat itself, most commentators would agree that the door has been opened to mass claims in the investment context, with the only question being when, not whether, the next mass claim will be filed. (417)

Individual states can attempt to forestall any future claims by amending their investment laws and agreements to prohibit the bringing of mass claims. However, that process will likely take some time, since the international investment regime has no equivalent of a national supreme court that can make a single sweeping judgment to stem the tide of mass claim arbitration. Furthermore, it is unclear whether it is either necessary or wise for states to take this type of defensive action.

The fear of many states, of course, is that the adoption of large-scale litigation techniques in investment arbitration is going to open the floodgates to the kind of abusive litigation culture commonly associated with U.S. class actions. (418) However, empirical research shows that not all forms of collective redress are the same. (419) Numerous jurisdictions have adopted national forms of class or collective relief that have not led to widespread or abusive use of large-scale litigation. (420) Although there may be a multitude of reasons why the incidence of class and collective redress varies so widely around the world, the primary rationale appears to relate to the relatively high number of incentives present in the U.S. legal system encouraging the use of large-scale litigation as both a compensatory and regulatory device. (421) However, none of these features--i.e., opt-out rather than opt-in or aggregative relief, punitive damages, contingency fees, and broad judicial discovery--are present in the international investment context. (422)

Given the problems, uncertainties, and costs associated with large-scale investment arbitration, it appears highly unlikely that parties would choose to bring such actions as a matter of first resort, since no rational party would want to undertake an international investment arbitration if a cheaper, faster, and more predictable alternative were available elsewhere. Instead, mass investment arbitration will likely only arise as a last resort, when other methods of recourse are actually or effectively unavailable. (423) This, of course, is consistent with the expectation and experience outside the investment context, namely that class and collective proceedings only arise when they are necessary. (424)

Although regulatory litigation and arbitration may be triggered by a particular type of need, (425) need alone is not enough for a particular proceeding to be considered regulatory. Instead, there must be a regulatory intent, a relevant substantive norm, and a rule or remedy that provides for a forward-looking regulatory effect. (426) These requirements are necessary to ensure that private litigants, acting in conjunction with judicial authorities or arbitral bodies, do not improperly infringe on the rightful responsibilities of legislative and administrative actors.

Some people consider any form of regulatory litigation or arbitration to be an impermissible incursion into public concerns that are best and most appropriately left to politically accountable actors. (427) However, this traditional top-down, command and control model of regulation is under fire from a variety of critics, including new governance theorists who see the challenges of modern society as requiring a new regulatory model built on shared public and private competencies. (428) Indeed, the rising interest in regulatory litigation and arbitration as both an academic and practical matter suggests that this shift away from conventional perspectives of regulation is well underway.

The need to understand and develop new regulatory models is particularly pressing in the international arena. Although the dissent in Abaclat would promote the use of domestic courts to address the kind of large-scale injuries at stake here, there are significant problems with that kind of national approach. These difficulties can be analyzed from a variety of perspectives, including investment law, (429) civil procedure, (430) or regulatory law. (431) This Article has focused primarily on the regulatory perspective but has highlighted issues from these other fields of inquiry so as to provide a more comprehensive context for analysis.

When considering the propriety of Abaclat and the availability of large-scale litigation techniques in investment arbitration, it is useful to consider the other alternatives. (432) As it turns out, numerous problems exist with all of the other available options. (433) Formal methods of international regulation are difficult to enact and slow to respond to changes in the legal or social environment. Transnational regulatory litigation is unpredictable and subject to the regulatory choices made by the forum state. National forms of regulation and regulatory litigation are unable to address the increasing number of cross-border legal harms in an effective manner. As a result, allowing a form of regulatory arbitration to develop in investment arbitration appears to be the best way of decreasing unpredictability and inconsistency in the international investment regime. (434)

The use of mass procedures in investment arbitration is a complex topic, and this Article is certainly not the last word on the subject. However, by considering whether and to what extent Abaclat can be considered a form of regulatory arbitration, this Article has attempted to put the dispute in a context that encourages broader questions about institutional design, both within investment law and in transnational regulation more generally. In so doing, this discussion hopefully provides a useful perspective on what is doubtless one of the more intriguing and controversial decisions of our time.

(1.) At this point, the tribunal has rendered only preliminary jurisdictional and dissenting awards. See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case-documents/ita0236.pdf; Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/casedocuments/ita0237.pdf.

(2.) The members of the Oil-Gas-Energy-Mining-Infrastructure Dispute Management (OGEMID) listserve named the majority's preliminary award in Abaclat the leading arbitration decision of 2011 as well as the most controversial or surprising decision of the year, with the dissenting award being named runner-up in both categories. See OGEMID Awards 2011, Transnat'l Disp. Mgmt., http://www.transnational-disputemanagement.com/ogemidawards/ (last visited Dec. 11, 2012) (listing the winners of the OGEMID Awards).

(3.) This issue has already generated a significant amount of commentary. See generally William W. Burke-White, The Argentine Financial Crisis: State Liability Under BITs and the Legitimacy of the ICSID System, in The Backlash Against Investment Arbitration: Perceptions and Reality 407, 411-32 (Michael Waibel et al. eds., 2010) (discussing sovereign debt issues); Karen Halverson Cross, Arbitration as a Means of Resolving Sovereign Debt Disputes, 17 Am. Rev. Int'l Arb. 335, 337-53 (2006) (discussing sovereign debt issues); Sabine Michalowski & Juan Pablo Bohoslavsky, Ius Cogens, Transitional Justice and Other Trends of the Debate on Odious Debt: A Response to the World Bank Discussion Paper on Odious Debts, 48 Colum. J. Transnat'l L. 59, 60-74 (2009) (discussing sovereign debt); Joanna Simoes, Sovereign Bond Disputes Before ICSID Tribunals: Lessons from the Argentina Crisis, 17 Law & Bus. Rev. Am. 683, 691-99 (2011) (discussing sovereign bonds as an investment under Article 25 of ICSID Convention); Daniella Strik, Investment Protection of Sovereign Debt and Its Implications on the Future ofInvestment Law in the EU, 29 J. Int'l Arb. 183, 183 (2012) (discussing the recent debate about sovereign debt instruments and protection against sovereign debt default); S.I. Strong, Collective Arbitration in ICSID Disputes: Abaclat (formerly Beccara) v. Argentine Republic, 17 IBA Arb. News 84 (Apr. 2012) (explaining and discussing Abaclat); Michael Waibel, Opening Pandora's Box: Sovereign Bonds in International Arbitration, 101 Am. J. Int'l L. 711, 718-32 (2007) (discussing ICSID jurisdiction over debt instruments); W. Mark C. Weidemaier, Disputing Boilerplate, 82 Temp. L. Rev. 1, 1-6 (2009) (exploring standardization of arbitration clauses in sovereign bond contracts); Robert M. Ziff, The Sovereign Debtor's Prison: Analysis of the Argentine Crisis Arbitrations and Implications for Investment Treaty Law, 10 Rich. J. Global L. & Bus. 345, 346-49 (2011) (discussing arbitrations under Argentinean BITs).

(4.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 35 (Abi-Saab, dissenting) (stating that this was the first dispute of this nature in an ICSID arbitration); see also Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 575 U.N.T.S. 159 [hereinafter ICSID Convention] (describing the settlement of international investment disputes); Agreement Between the Republic of Argentina and the Republic of Italy on the Promotion and Reciprocal Protection of Investments, May 22, 1990 [hereinafter Argentina-Italy BIT], available at http://unctad.org/sections/dite/iia/docs/bits/italy_argentina_it.pdf.

(5.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 295, 488 (stating that Abaclat is the first ICSID case where "mass claims" have been brought).

(6.) See id [paragraph][paragraph] 104, 294 (stating that case is not a "class action").

(7.) The vagaries of U.S. class actions are well-documented. See Deborah R. Hensler et al., Class Action Dilemmas: Pursuing Public Goals for Private Gain 3-7 (2000) (discussing U.S. class action suits); Rachael Mulheron, The Class Action in Common Law Legal Systems: A Comparative Perspective 9-12 (2004) (comparing U.S. class actions to similar litigation in other jurisdictions); Kevin R. Johnson, International Human Rights Class Actions: New Frontiers for Group Litigation, 2004 Mich. St. L. Rev. 643, 646-47 (2004); Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. Chi. Legal F. 475, 516-18 (2003) (discussing evolution of U.S. class actions); George Rutherglen, WalMart, AT&T Mobility, and the Decline of the Deterrent Class Action, 98 Va. L. Rev. in Brief 24, 28 (2012) (explaining the effect of recent U.S. Supreme Court decisions concerning class suits); Edward T. Schroeder, Note, A Tort by Any Other Name? In Search of the Distinction Between Regulation Through Litigation and Conventional Tort Law, 83 Tex. L. Rev. 897, 897-98 (2005) (discussing criticism of U.S. class-action litigation).

(8.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 295, 488. Other large multiparty proceedings have been filed with the International Centre for Settlement of Investment Disputes (ICSID) in the past, including those with over 100 claimants. See Anderson v. Republic of Costa Rica, ICSID Case No. ARB(AF)/07/3, Award, [paragraph] 3 (May 10, 2011), available at http://italaw.com/documents/AndersonvCostaRicaAward19May2010.pdf (involving 137 Canadian claimants proceeding under the ICSID Additional Facility); Funnekotter v. Republic of Zimbabwe, ICSID Case No. ARB/05/6, Award (Apr. 7, 2009), available at http://italaw.com/documents/ ZimbabweAward.pdf (involving 13 named claimants with over 1500 other potential participants waiting in the wings); AgricAfrica Ltd. Newsletter No. 32, Zimbabwe Lifestyle Blog [paragraph] 2 (Jan. 5, 2010), http://zimbabwefood.blogspot.com/2010/01/this-should-be-of-interest-to-everyone.html (noting existence of other potential claimants in Funnekotter). However, Abaclat is unique in the international investment arena in terms of the scope, scale, and nature of claims brought. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 171 (AbiSaab, dissenting) (discussing novelty of mass claims in investment context); S.I. Strong, Mass Procedures in Abaclat v. Argentine Republic: Are They Consistent with the International Investment Regime?, 3 Y.B. Int'l Arb. (forthcoming 2013) [hereinafter Strong, Abaclat].

(9.) A number of claimants came to the Iran-United States Claims Tribunal in 2003 seeking to bring an action "on [their] own behalf and by proxy and representation on behalf of all Iranian citizens," although the claim was denied on the grounds that group actions are not permitted under the Claims Settlement Declaration or tribunal precedent. Sheibani v. United States, 1 Iran-U.S. Cl. Trib. Rep. 946, [paragraph][paragraph] 2, 13 (2003). Large-scale claims have also been brought against the Bank for International Settlements, although those proceedings also failed. See Lea Haber Kuck & Gregory A. Litt, International Class Arbitration, in World Class Actions: A Practitioners Guide to Group and Representative Actions Around the Globe 700, 726-27 (Paul Karlsgodt ed., 2012) (discussing large-scale claims brought against the Bank for International Settlements); Scott Armstrong Spence, Organizing an Arbitration Involving an International Organization and Multiple Private Parties: The Example of the Bank for International Settlements Arbitration, 21 J. Int'l Arb. 309, 316 (2004) (noting instruments permitting arbitration involving the Bank for International Settlements "did not contemplate class action proceedings nor allow [arbitrators] to certify a class").

(10.) See Alemanni v. Argentine Republic, ICSID Case No. ARB/07/8; Alpi v. Argentine Republic, ICSID Case No. ARB/08/9. Because there is no system of binding precedent in investment arbitration, it is unclear whether the tribunals in Alemanni or Alpi will adopt the reasoning in Abaclat and accept jurisdiction over all the parties. See Campbell McLachlan et al., International Investment Arbitration: Substantive Principles 71-76 (2008) (discussing precedent in investment arbitration); Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse?, 23 Arb. Int'l 357, 361-78 (2007) (noting a form of soft precedent exists).

(11.) Several analysts have highlighted the possibility of a mass investment action relating to the Greek debt crisis. See News in Brief: German Law Firm Eyes Case over Sovereign Debt Restructuring, 3 Investment Treaty News 19, 19 (Apr. 2012), http://www.iisd.org/pdf/2012/iisd_itn_april_2012_en.pdf (discussing Greek sovereign debt under the BIT between Germany and Greece); Patrick Heneghan & Markus Perkams, The Clawback: Can Arbitration Help Greek Bondholders Gain Redress?, Legalweek (May 11, 2012), http://www.legalweeklaw.com/abstract/clawback-arbitration-help-greek-bondholders-gain-redress-12089 (discussing issues relating to Greek sovereign debt issues). Other commentators have suggested that the Chevron-Ecuador dispute might at some point yield class or collective procedures under the U.S.-Ecuador BIT. See Mariel Dimsey, The Resolution of International Investment Disputes 217-18 (2008) (discussing future possibilities for large-scale investment arbitration). Still other observers have suggested that countries such as Portugal may need to take heed of Abaclat. See Yuriy Vilner, Realities and Priorities of Portugal's Debt Management, Pt. IV, Jurist--Dateline, Apr. 12, 2012, http://jurist.org/dateline/ 2012/04/yuriy-vilner-portugal-debt.php (examining possible application of Abaclat to Portugal's sovereign debt).

(12.) It is very likely that Argentina will seek to annul the award after the conclusion of the proceedings on the merits, not only because of the novelty of the issues at stake, but because Argentina has brought annulment proceedings every time a final award has been rendered against it. See Karen Halverson Cross, Investment Arbitration Panel Upholds Jurisdiction to Hear Mass Bondholder Claims Against Argentina, 15 Am. Soc'y of Int'l L. Insights (Nov. 21, 2011), www.asil.org/pdfs/insights/insight111121.pdf (discussing likelihood of annulment proceedings in Abaclat); Steven Smith et al., International Commercial Dispute Resolution, 44 Int'l Law. 113, 127 (2010) (discussing annulment proceedings previously brought by Argentina in ICSID disputes). Therefore, it will be years before the jurisdictional determinations outlined in the recent awards can be considered final.

(13.) Debate about these issues has already begun. See supra note 3 (surveying different opinions on these issues).

(14.) "There is no consensus in policy or academic circles as to what exactly is connoted by the term regulation." Colin Scott, Privatization and Regulatory Regimes, in Oxford Handbook of Public Policy, 651, 653 (Michael Moran et al. eds., 2006). One classic definition states that regulation involves "sustained and focused control exercised by a public agency over activities that are socially valued," although modern critics have expanded the scope of application to include regulatory activity undertaken by private actors and other decentralized entities. Id (quoting Phillip Selznick, Focusing Organizational Research on Regulation, in Regulatory Policy and the Social Sciences 363, 363-67 (Roger G. Noll ed., 1985)).

(15.) Gus Van Harten & Martin Loughlin, Investment Treaty Arbitration as a Species of Global Administrative Law, 17 Eur. J. Int'l L. 121, 124-27, 149 (2006); see also Benedict Kingsbury et al., The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15, 15 (2005) (discussing the growing field of global administrative law); Benedict Kingsbury & Stephan W. Schill, Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law, in 50 Years of the New York Convention, 14 ICCA Cong. Ser. 5, 10 (Albert Jan van den Berg ed., 2008) ("Global administrative law is concerned with the exercise of public authority by bodies outside the State, and by States in ways that reach beyond the State and its law."); Alex Mills, Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration, 14 J. Int'l Econ. L. 469, 501-02 (2011) (discussing international investment law as a "single uniform public international system"); Richard B. Stewart, The Global Regulatory Challenge to U.S. Administrative Law, 37 N.Y.U. J. Int'l L. & Pol. 695, 718 (2005) (discussing six basic elements of administrative law); Stephan W. Schill, Enhancing International Investment Law's Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach, 52 Va. J. Int'l L. 57, 80-81, 85 (2011) [hereinafter Schill, Legitimacy] (discussing investment treaty arbitration exercising governance).

(16.) Kingsbury & Schill, supra note 15, at 5; see also Gus Van Harten, Investment Rules and the Denial of Change, 60 U. Toronto L.J. 893, 894-95 (2010) (reviewing David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy's Promise (2008)).

(17.) Andreas F. Lowenfeld, Investment Agreements and International Law, 42 Colum. J. Transnat'l L. 123, 128 (2003); see also Jose E. Alvarez, A BIT on Custom, 2 N.Y.U. J. Int'l L. & Pol. 17, 19 (2012) (discussing regulatory implications of investment law); Stephen M. Schwebel, The Influence of Bilateral Investment Treaties on Customary International Law, 98 Am. Soc'y Int'l L. 27, 29 (2004) (discussing regulatory elements of bilateral investment treaties).

(18.) New governance theory attempts to identify new regulatory mechanisms that fall between traditional command and control models of regulation and deregulated markets. See On Amir & Orly Lobel, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, 108 Colum. L. Rev. 2098, 2100 (2008) (discussing new governance theory); see also Kenneth W. Abbott & Duncan Snidal, Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit, 42 Vand. J. Transnat'l L. 501, 505-06 (2009) (describing emerging roles for principal actors in state regulation); Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53, 54 (2011) (discussing efforts to escape limits of command-and-control administration); Scott, supra note 14, at 651-52 (discussing the transfer of regulation from the public to the private sector). See generally Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998) (describing models of regulation based on new governance theory).

(19.) Peer Zumbansen, Sustaining Paradox Boundaries: Perspectives on Internal Affairs in Domestic and International Law, 15 Eur. J. Int'l L. 197, 201 (2004); see also Scott, supra note 14, at 651 (describing privatization of regulatory regimes).

(20.) J. Maria Glover, The Structural Role of Private Enforcement Mechanisms in Public Law, 53 Wm. & Mary L. Rev. 1137, 1146 (2012).

(21.) Patrick Luff, Risk Regulation and Regulatory Litigation, 64 Rutgers L. Rev. 73, 96 (2011) (quoting Andrew P. Morris et al., Regulation By Litigation 1 (2009)).

(22.) See John C. Coffee, Jr., Litigation Governance: Taking Accountability Seriously, 110 Colum. L. Rev. 288, 344 (2010) (noting that the United States has long accepted the concept of private attorneys general). Not all regulatory litigation is undertaken by private actors. See Luff, supra note 21, at 113 (discussing public forms of regulatory litigation); see also Miriam H. Bayer, Choosing Punishment, 92 B.U. L. Rev. 577, 612-25 (2012) (discussing corporate governance and regulation from non-institutional forces); Timothy Meyer, Comment, Federalism and Accountability: State Attorneys General, Regulatory Litigation and the New Federalism, 95 Calif. L. Rev. 885, 886 (2007) (describing state attorneys generals as creators of state-based regulation).

(23.) Although European nations have typically been painted as preferring to adopt a large number of legislative and administrative enactments that deny both the need and opportunity for any sort of "private" regulation through litigation, that characterization may no longer be true. See Coffee, supra note 22, at 345 (discussing potential transition in Europe towards class actions). Jurisdictions other than the United States may be in the process of adopting their own forms of regulatory litigation as the principle of "adversarial legalism" takes root around the world. See Robert A. Kagan, Adversarial Legalism: The American Way of Law 3 (2001) (defining adversarial legalism as policymaking by means of litigation); Francesca Bignami, Cooperative Legalism and the Non-Americanization of European Regulatory Styles: The Case of Data Privacy, 59 Am. J. Comp. L. 411, 412 (2011) (considering European regulatory model); R. Daniel Kelemen, Suing for Europe: Adversarial Legalism and European Governance, 39 Comp. Pol. Stud. 101, 102 (2006) (arguing that a shift towards U.S. legal style is emerging in the European Union); Richard A. Nagareda, Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism, 62 Vand. L. Rev. 1, 51 (2009) (discussing the emergence in Europe of procedures for aggregate litigation); Adam Samuel, Consumer Financial Services in Britain: New Approaches to Dispute Resolution and Avoidance, 3 Eur. Bus. Org. L. Rev. 649, 653-54, 656-62 (2002) (discussing European alternatives to various forms of regulation); Scott, supra note 14, at 656, 659 (discussing the formalization of norms within regulatory regimes and the transition to the regulatory state).

(24.) The three best-known rationales for class actions are regulation, compensation, and efficiency, although class suits can provide additional benefits such as information sharing, accountability, and transparency rationales. See Hensler et al., supra note 7, at 68-72 (discussing class actions as a tool for regulation); Mulheron, supra note 7, at 47-66 (discussing rationales for class relief outside the United States); Elizabeth Chamblee Burch, Securities Class Actions as Pragmatic Ex Post Regulation, 43 Ga. L. Rev. 63, 92111 (2008) (discussing positive externalities of securities class actions).

(25.) See S.I. Strong, Regulatory Litigation in the European Union: Does the U.S. Class Action Have a New Analogue?, 88 Notre Dame L. Rev. (forthcoming 2013) (manuscript at 12) [hereinafter Strong, Regulatory Litigation] (discussing use of collective redress as a means of regulation in the European Union).

(26.) Mulheron, supra note 7, at 63. See generally 622 The Annals of the American Academy of Political and Social Science (Deborah Hensler et al. eds., 2009) [hereinafter The Annals] (discussing large-scale litigation in over 30 countries).

(27.) The term "regulatory arbitration" was first coined by Marc Blessing to describe arbitral proceedings taken in connection with antitrust or competition law claims. See Assimakis P. Komninos, Assistance by the European Commission and Member States Authorities in Arbitration, in EU and US Antitrust Arbitration: A Handbook for Practitioners 727, 740 (Gordon Blanke & Phillip Landolt eds., 2011) (discussing regulatory arbitration and Blessing's use of the term). Blessing believed that
   the combination of the outsourced regulatory task and the judicial
   tasks, accomplished by a competent arbitrator ... will be the
   most efficient tool to review and, if need be, sanction
   anticompetitive behaviour arising out of a concentration, and to
   install in business practice the objectives which the Commission
   aims to achieve through its merger control.


Marc Blessing, Arbitrating Antitrust and Merger Control Issues, 14 Swiss Comm. L. Ser. 197 (2003). Although Blessing's version of regulatory arbitration is in many ways consistent with the principles described in this Article, the current discussion uses the term more broadly than Blessing.

(28). See Glover, supra note 20, at 1140 (discussing ex post law enforcement resulting from private suits); Luff, supra note 21, at 75 (noting regulatory litigation arose out of a desire to expand regulatory capacity); Strong, Regulatory Litigation, supra note 25 (manuscript at 4) (discussing different forms of regulatory litigation).

(29.) Sometimes the discussion of transnational regulatory litigation focuses on regulatory issues per se. See Hannah L. Buxbaum, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, 46 Colum. J. Transnat'l L. 14, 35 (2007) [hereinafter Buxbaum, Securities] (discussing global class actions as a means of regulation); Nagareda, supra note 23, at 11-12 (discussing regulatory mismatches); Stewart, supra note 15, at 709 (discussing regulatory concerns in a global context). At other times, the analysis is framed as a matter of civil procedure, although the issues raised involve questions that relate to regulatory litigation. See Stephen J. Choi & Linda J. Silberman, Transnational Litigation and Global Securities Class Actions, 2009 Wis. L. Rev. 465, 479 (2009) (discussing exportation of national norms in international suits); John C.L. Dixon, The Res Judicata Effect in England of a US Class Action Settlement, 46 Int'l & Comp. L.Q. 134, 134 (1997) (questioning preclusive effect of U.S. class action litigation in England); Tanya J. Monestier, Transnational Class Actions and the Illusory Search for Res Judicata, 86 Tul. L. Rev. 1, 44-45 (2011) (discussing preclusive effect of U.S. class actions outside the U.S.); Rachael Mulheron, The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England: A Rebuttal of Vivendi, 75 Mod. L. Rev. 180, 181-82 (2012) [hereinafter Mulheron, Vivendi] (predicting that English courts will not enforce U.S. decisions involving English class members); Rhonda Wasserman, Transnational Class Actions and Interjurisdictional Preclusion, 86 Notre Dame L. Rev. 313, 332-69 (2011) (comparing U.S. principles of preclusion with those of several European countries).

(30.) See Deborah Hensler, How Economic Globalisation Is Helping to Construct a Private Transnational Legal Order, in The Law of the Future and the Future of the Law 249, 256-59 (Sam Muller et al. eds., 2011) [hereinafter Hensler, Future] (suggesting arbitration can overcome certain problems associated with international litigation); Nagareda, supra note 23, at 10 (suggesting arbitration can resolve certain problems associated with large-scale international suits); S.I. Strong, Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared, 37 N.C. J. Int'l L. & Com. Reg. 921, 969-80 (2012) [hereinafter Strong, Canada] (describing how class arbitration can overcome problems with national and international class actions in the United States and Canada).

(31.) See supra notes 16-17 and accompanying text (noting that a number of commentators have characterized investment law as a type of global administrative law).

(32.) See infra notes 276-79 and accompanying text (explaining the "liberal internationalist" perspective on investment law).

(33.) See infra note 284 and accompanying text (acknowledging the "deeper uncertainties" involving the purpose of international investment law).

(34.) Interpretive issues are particularly problematic in Abaclat given the silence of the relevant treaties and procedural rules on the question of mass procedures. See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. APB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 297, 517 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case-documents/ita0236.pdf (acknowledging the silence of the relevant treaties); Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 154-75 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf (noting the silence of the relevant treaties); see also infra note 216 and accompanying text (discussing U.S. law regarding contractual silence in cases involving class arbitration).

(35.) The dispute is extremely complex, both as a matter of fact and as a matter of law, and the two awards are quite long. See generally Abaclat, ICSID Case No. ARB/07/5 (measuring over 280 pages in length); Abaclat, ICSID Case No. ARB/07/5 (Abi-Saab, dissenting) (measuring 105 pages in length). Therefore, this Part only raises those matters that are relevant to the current Article.

(36.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 58.

(37.) Id. [paragraph] 65.

(38.) Id. [paragraph] 66.

(39.) See id. [paragraph][paragraph] 84-85. The author discusses the mandate and ancillary documents in detail elsewhere. See S.I. Strong, Mass Torts and Arbitration: Lessons from Abaclat v. Argentine Republic, in Uncertainty and Mass Tort: Causation and Proof (Jose Ferrer Beltran et al. eds., forthcoming 2012).

(40.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 1, 216, 592 (explaining how the number of claimants dropped). One of the novel issues raised in Abaclat is whether and to what extent individual parties to a multiparty proceeding can withdraw without affecting the standing of the remaining disputants. See id. 1 294. This issue is beyond the scope of the current Article.

(41.) See id [paragraph] 127 (outlining the procedural calendar).

(42.) See generally id.; Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf.

(43.) Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 483, 488 (citing S.I. Strong, From Class to Collective: The De-Americanization of Class Arbitration, 26 Arb. Int'l 493, 506-08 (2010) [hereinafter Strong, DeAmericanization] (misattributed to "Stacy I. Starck")). For purposes of the award, the majority set aside a third type of collective redress: settlement-only relief. See id. [paragraph] 483 n.176 (noting three types of large-scale arbitral relief).

(44.) See generally AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (discussing enforceability of waivers of class arbitration under the Federal Arbitration Act); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010) (discussing the propriety of class arbitration in the face of contractual silence or ambiguity).

(45.) See McLachlan et al., supra note 10, at 66 (noting "BITs, as treaties, 'must be interpreted according to the Law of Nations, and not according to any municipal code,'" and indicating that the "applicable law for the interpretation of the treaty is international law," as defined primarily by Article 31 of the Vienna Convention on the Law of Treaties (internal citations omitted)). But see id. at 69 (stating "[t]he fact that the interpretation of BITs is governed by public international law does not exclude domestic law from consideration by investment treaty tribunals" but noting "[t]he main role of domestic law is in defining the scope of the investment protected").

(46.) See Strong, Regulatory Litigation, supra note 25 (manuscript at 19).

(47.) Although the majority considered arguments from claimants regarding the historical development of class arbitration in the United States, the majority award did not cite any U.S. cases concerning class arbitration, unlike the dissent. See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 146, 148-53 (Abi-Saab, dissenting) (citing two U.S. cases when discussing the propriety of large-scale arbitration in absence of express consent).

(48.) The Abaclat majority award considered "the concept of jurisdiction under the [ICSID] Convention" to cover "issues which may usually be regarded as issues of 'admissibility'" as well as jurisdiction per se. Abaclat ICSID Case No. ARB/07/5, [paragraph] 245. Lack of jurisdiction means that the "claim cannot at all be brought in front of the body called upon" whereas "a lack of admissibility means that the claim was neither fit nor mature for judicial treatment." Id [paragraph] 247(i). Abaclat also defined admissibility as relating to "the question whether ordering the parties to proceed collectively is within the scope of the Tribunal's discretion and authority." Id. 1 485.

(49.) Id. [paragraph] 484 (quoting Strong, De-Americanization, supra note 43). The dissent denied that failure to allow the claims to proceed en masse would deprive the claimants of their substantive rights. See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 254-57 (Abi-Saab, dissenting).

(50.) See infra note 78 and accompanying text (discussing need for regulatory litigation).

(51.) Buxbaum, Securities, supra note 29, at 37; see also In re Lernout & Hauspie Sec. Litig., 208 F. Supp. 2d 74, 91 -93 (D. Mass. 2002) (discussing the doctrine of forum non conveniens); DeRensis v. Coopers & Lybrand Chartered Accts., 930 F. Supp. 1003, 1007-09 (D.N.J. 1996) (discussing the public and private interests that are relevant when choosing an alternative forum).

(52.) See McLachlan et al., supra note 10, at 226-47 (discussing fair and equitable treatment standard). The fact that Argentina did not provide for collective redress mechanisms in its national courts was relevant to the majority's decision. See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 484, 587 (noting Argentina's legal system does not provide for mass claims).

(53.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 488 (discussing how both types of collective preceedings share common traits). Although the majority did not raise this possibility, the proceedings in Abaclat could also be framed as an opt-in representative proceeding, wherein the parties must affirmatively signal their assent to the mass proceedings but thereafter cede control of the conduct of the dispute to the lead claimant or other qualified representative, who acts as an agent for the passive members of the group. See Deborah R. Hensler, The Globalization of Class Actions: An Overview, in The Annals, supra note 26, at 7, 15-17 (discussing class and collective procedures in multiple jurisdictions around the world).

(54.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 487. While it may appear odd to U.S.-trained lawyers to have what looks like a lead plaintiff acting without any sort of independent interest in the dispute, many jurisdictions not only permit but require claims for collective redress to be brought by official organizations or associations rather than by an interested individual him or herself. See Hensler, supra note 53, at 14 (discussing who has standing to bring mass claims cases); Strong, De-Americanization, supra note 43, at 503-04 (discussing nonclass forms of large-scale arbitration and litigation). When viewed from that perspective, TFA's role as an agent does not appear problematic.

(55.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 487.

(56.) See Strong, Regulatory Litigation, supra note 25 (considering the possibility of regulatory litigation in the United States and Europe). However, not every class action can be considered regulatory. See id.; see also Mulheron, supra note 7, at 63-66 (discussing class actions in Canada).

(57.) See Strong, Regulatory Litigation, supra note 25 (considering the possibility of regulatory litigation in the United States and Europe). The United States embraces both opt-out representative relief and aggregative relief. See 28 U.S.C. [section] 1407 (2012) (involving federal multi-district litigation (MDL)); Fed. R. Civ. P. 23. Outside the United States, procedures range from other types of representative relief (such as that which is available only on an opt-in basis, only with respect to certain substantive areas of law, only with respect to injunctive relief and/or only at the instigation of an approved intermediary entity such as a government association or non-government organization) to aggregate and settlement-only relief. See Hensler, supra note 53, at 8, 13-17 (discussing large-scale litigation in various jurisdictions around the world); see also Directorate General for Internal Policies, Overview of Existing Collective Redress Schemes in EU Member States, IP/A/IMCO/NT/2011-16, at 38 (July 2011), available at http://www.europarl.europa.eu/document/activities/ cont/201107/20110715ATT24242/20110715ATT24242EN.pdf (noting European Member States have adopted four general types of collective redress: "group and representative actions, test case procedures and procedures for skimming off profits").

(58.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 130-45 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/ sites/default/files/case-documents/ita0237.pdf (disputing the "hybrid" character of the proceedings).

(59.) Id. [paragraph] 132.

(60.) See id [paragraph] 131 (discussing procedural approach to aggregated proceedings); see also Hensler, supra note 53, at 16-17 (discussing procedure for aggregating mass claims).

(61.) Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 134-35 (Abi-Saab, dissenting); see also Hensler, supra note 53, at 14 (discussing procedure for representative class actions).

(62.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 139-45 (Abi-Saab, dissenting) (discussing nonhomogeneity of claims). Thus the dissent stated that
   the majority award sets aside all the specificities of the claims
   concerning the security entitlements (price, date of purchase,
   place of purchase, in which currency, applicable law, chosen forum,
   etc.) as characteristics relevant only to the contractual rights of
   their holders, i.e., to contract claims; while what counts here,
   according to the majority award, are the treaty claims, which are
   homogenous.... But ... how can the Tribunal for example evaluate a
   treaty claim for compensating damages caused to an asset, without
   knowing (or while making abstraction of) the time the asset was
   acquired, the price paid for it and the currency of denomination?


Id. [paragraph][paragraph] 142-44.

(63.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 316-26, 537, 545 (Aug. 4, 2011), available at http://italaw.com/sites/default/ files/case-documents/ita0236.pdf (discussing contract claims and treaty claims); Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 142-44 (Abi-Saab, dissenting) (discussing homogeneity in the majority's decision).

(64.) The extent to which the award reflects efficiency and other non-regulatory concerns is discussed by the author elsewhere. See Strong, Abaclat, supra note 8 (manuscript at 9-15) (discussing rationales supporting large-scale arbitration).

(65.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 545.

(66.) Id. [paragraph] 537; see also Ilija Mitrev Penusliski, A Dispute Systems Design Diagnosis of ICSID, in The Backlash Against Investment Arbitration 507, 524-26 (Michael Waibel et al. eds., 2010) (outlining average costs of an ICSID arbitration).

(67.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 665.

(68.) Gabrielle Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J. Transnat'l L. 1313, 1321-22 (2003); see also Julian D.M. Lew et al., Comparative International Commercial ARBITRATION [paragraph] 16-92 (2003) (suggesting multiparty arbitration may be appropriate if "it serves procedural economy"); Emmanuel Gaillard & John Savage, Fouchard, Gaillard, Goldman on International Commercial Arbitration [paragraph] 476 (1999).

(69.) See Mulheron, supra note 7, at 63-66 (distinguishing regulatory from non-regulatory class relief); Strong, Regulatory Litigation, supra note 25 (manuscript at 59) (discussing various rationales supporting the use of regulatory litigation).

(70.) See generally Strong, Regulatory Litigation, supra note 25 (setting forth a detailed analysis of regulatory litigation).

(71.) See Buxbaum, Securities, supra note 29, at 41 -67 (discussing transnational regulatory litigation in the securities field); Hannah L. Buxbaum, Transnational Regulatory Litigation, 46 Va. J. Int'l L. 251, 257-72 (2006) [hereinafter Buxbaum, Transnational] (discussing transnational regulatory litigation in various economic contexts); Bayer, supra note 22 (discussing regulatory litigation involving public actors); Luff, supra note 21, at 113-14 (distinguishing top-down from bottom-up regulatory litigation); Meyer, supra note 22 (discussing regulatory litigation involving public actors).

(72.) Luff, supra note 21, at 113; see also Buxbaum, Securities, supra note 29, at 75.

(73.) See Dan B. Dobbs, Law of Remedies 337-41 (2d ed. 1993) (discussing class relief); Strong, Regulatory Litigation, supra note 25 (manuscript at 28) (analyzing use of class procedures as a remedial measure); Nagareda, supra note 23, at 2-3 (discussing how background principles of U.S. law increase regulatory effect of class actions).

(74.) See Luff, supra note 21, at 113 (noting that bottom-up regulatory litigation is especially controversial).

(75.) Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282 (1976); see also Jack Greenberg, Civil Rights Class Actions: Procedural Means of Obtaining Substance, 39 Ariz. L. Rev. 575, 576-77 (1997); Luff, supra note 21, at 101.

(76.) Luff, supra note 21, at 113.

(77.) See id. at 75 (noting regulatory litigation focuses on "latent social risk"). The problems of unanticipated regulatory issues are readily apparent in the context of the recent financial crisis. For example, as one commentator noted in a discussion about the propriety of creating more federal agencies to regulate the financial sector:
   Identifying unanticipated risk is hard and there is no reason to
   think that the same busy federal officials, who apparently
   overlooked these risks in 2006 and 2007, will become more prescient
   simply because they serve together on an elite Council. The
   presence of the one independent expert is helpful, but there was no
   lack of experts in the late 2000s who warned of an impending
   financial collapse. There were also some savvy investors and
   economists who anticipated the collapse, but the financial
   regulators and the US intelligence community apparently took no
   notice of that.


Steve Charnovitz, Addressing Government Failure Through International Financial Law, 13 J. Int'l Econ. L. 743, 748 (2010) (internal citation omitted).

(78.) Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980) (noting also that "[w]here it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device").

(79.) See Glover, supra note 20, at 1137 (stating that private regulatory litigation and the mechanisms that enable it are not fundamentally at odds with a public law regime).

(80.) See id (explaining that private litigation is an integral part of the modern administrative state); Strong, De-Americanization, supra note 43, at 502 (noting that states may allow large-scale, potentially regulatory claims to be brought only in limited subject matter areas); Strong, Regulatory Litigation, supra note 25 (explaining that litigation is a necessary form of regulation in certain legal systems). "Need" was specifically mentioned as a rationale for mass proceedings in Abaclat. See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 484 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case-documents/ita0236.pdf (citing "need" as a rationale for mass proceedings).

(81.) These queries help determine whether the regulatory gap is intentional or unintentional. See Mulheron, supra note 7, at 248-52 (discussing the possibility of unintended regulatory effects). Other criteria can also be used, though they are not discussed herein. See Glover, supra note 20, at 1153-55 (discussing other circumstances where regulatory litigation might be appropriate); Strong, Regulatory Litigation, supra note 25 (manuscript at 54) (discussing various instances where regulatory litigation might be necessary).

(82.) See Hensler, supra note 53, at 19-20 (noting that most large-scale disputes settle, regardless of whether they are brought as a representative or aggregative action).

(83.) See Luff, supra note 21, at 113-14.

(84.) Id.

(85.) See Strong, Regulatory Litigation, supra note 25 (manuscript at 28).

(86.) See id (defining intent as the desire to prevent or influence future behavior); see also infra notes 288324 and accompanying text (discussing the definition of regulatory intent).

(87.) See Luff, supra note 21 (discussing scope of regulatory effect); see also Mulheron, supra note 7, at 64; Strong, Canada, supra note 30, at 967-70; Strong, Regulatory Litigation, supra note 25.

(88.) See infra notes 288-324 and accompanying text (discussing intent in arbitral context).

(89.) See Luff, supra note 21, at 81 (discussing the prominence of regulatory lawsuits in the U.S.); see also Regulation Through Litigation 22-51 (W. Kip Viscusi ed., 2002) (discussing regulation through litigation using case studies regarding tobacco); Andrew P. Morriss et al., Regulation by Litigation 16-35 (2009) (noting the "regulator's dilemma").

(90.) See Strong, Regulatory Litigation, supra note 25 (manuscript at 77) (discussing the combination of public and private regulation in the United States).

(91.) Christopher Hodges, Europeanization of Civil Justice: Trends and Issues, 26 CIV. Just. Q. 96, 121 (2007).

(92.) Nagareda, supra note 23, at 13.

(93.) See Stewart, supra note 15, at 699-703 (describing "the vast increase in" and nature of transnational regulation).

(94.) Id. at 703; see also Kingsbury & Schill, supra note 15, at 10-11 (discussing complexities of global administrative law).

(95.) This scenario may be most readily seen in the context of antitrust or competition law, in that developing countries without robust antitrust or competition law regimes "may leave anti-competitive conduct entirely unregulated," thus requiring other countries to step in so as to "ensure better regulation of markets everywhere." Buxbaum, Transnational, supra note 71, at 261. However, problems with comparative underregulation can also arise in other fields, such as those involving securities, pharmaceuticals, or the environment. See id. at 261, 263, 310 (explaining problems with under-regulation in various contexts).

(96.) See id. at 261 (discussing problems with regulatory inconsistency in the international context); Alan Devlin, Antitrust Divergence and the Limits of Economics, 104 Nw. U. L. Rev. 253, 267-68 (2010) (discussing inconsistent actions taken by the U.S. Department of Justice and the European Commission with respect to Microsoft as well as the proposed merger between Honeywell and General Electric); William E. Kovacic, The Institutions of Antitrust Law: How Structure Shapes Substance, 110 Mich. L. Rev. 1019, 1036 n.67 (2012) (reviewing and examining Daniel A. Crane, The Institutional Structure of Antitrust Enforcement (2011)); Stewart, supra note 15, at 695 (discussing diversity of regulatory regimes in national and international contexts).

(97.) See Richard N. Gardner, The Bretton Woods-GATT System After Sixty-Five Years: A Balance Sheet of Success and Failure, 47 Colum. J. Transnat'l L. 31, 43 (2008) ("We have developed a highly sophisticated, 24-hour-day global capital market, which facilitates instantaneous transfers of funds on a scale that the 'founding fathers' could not have imagined.").

(98.) Sungjoon Cho & Claire R. Kelly, Promises and Perils of New Global Governance: A Case of the G20, 12 Chi. J. Int'l L. 491, 494 (2012).

(99.) Need is often the driving force behind the development of regulatory litigation. See supra notes 77-80 and accompanying text (explaining that aggregation of claims evolved from the need to regulate behavior unaddressed under standard regulatory approaches).

(100.) See Strong, Regulatory Litigation, supra note 25 (manuscript at 4) (explaining that cross-border class actions create certain unique regulatory and procedural problems); see also supra note 46 and accompanying text (discussing institutional design issues in investment regime).

(101.) See Chayes, supra note 75 (explaining that litigation is traditionally envisaged as disputes between private parties about private concerns); Greenberg, supra note 75 (discussing use of class actions for public purposes); Luff, supra note 21, at 101 (questioning whether the traditional lawsuit was indeed a vehicle for settling private rights through private parties).

(102.) See Luff, supra note 21, at 113 (explaining controversies relating to use of regulatory litigation).

(103.) See, e.g., Strong, Regulatory Litigation, supra note 25 (manuscript at 16-17) (citing Coffee, supra note 22) (discussing whether private litigation is appropriate for public matters and whether regulator silence is intentional).

(104.) See generally Hensler, Future, supra note 30, at 250-55; S.I. Strong, Collective Redress in the Cross-Border Context: Litigation, Arbitration, Settlement and Beyond, in 2 THE LAW OF THE FUTURE AND THE FUTURE OF THE LAW (Sam Muller et al. eds., forthcoming 2012) (exploring the issues and problems raised by globalization in the legal world).

(105.) Buxbaum, Transnational, supra note 71, at 260; see id. at 297-305; see also Nagareda, supra note 23, at 13 (explaining that the global economy creates difficulties in dealing with global disputes using domestic courts).

(106.) See Alberto Cassone & Giovanni B. Ramello, The Simple Economics of Class Action: Private Provision of Club and Public Goods, 32 Eur. J.L. & Econ. 205, 209-12, 222-23 (2011) (explaining consequences of failure to coordinate global regulation); Giovanni B. Ramello, Aggregate Litigation and Regulatory Innovation: Another View of Judicial Efficiency, 32 Int'l Rev. L. & Econ. 63, 64 (2012) (noting asbestos litigation "attract[ed] the attention of regulators and trigger[ed] regulatory change," with "[t]he consequences extend[ing] beyond the borders of the US, with other countries implementing similar regulatory regimes in their own national systems"); see also supra notes 95-96 and accompanying text (discussing regulatory gaps, regulatory duplication, and regulatory inconsistency).

(107.) Interestingly, this appears to be the most common analytical paradigm for issues relating to transnational regulatory litigation. See supra note 29 (listing sources using this analytical approach).

(108.) See Buxbaum, Securities, supra note 29, at 18-67 (discussing jurisdictional issues in multinational class actions); Buxbaum, Transnational, supra note 71, at 272-93 (discussing "[t]he application of jurisdictional rules in transnational regulatory cases"); Jodie A. Kirschner, Why Is the U.S. Abdicating the Policing of Multinational Corporations to Europe?: Extraterritorialism, Sovereignty, and the Alien Tort Statute, 30 Berkeley J. Int'l L. 259, 260 (2012) (noting the United States is moving away from a broad acceptance of extraterritorial jurisdiction); Nagareda, supra note 23, at 19-41 (discussing these issues in regard to international class actions); Strong, Mass Torts, supra note 39 (discussing jurisdictional issues in the field of mass torts); Marco Ventoruzzo, Like Moths to a Flame? International Securities Litigation After Morrison: Correcting the Supreme Court's "Transactional Test", 52 Va. J. Int'l L. 405, 443 (2012) (discussing the current system of international securities litigation and problems that can arise in determining the governing law in international disputes).

(109.) See Nagareda, supra note 23, at 13 (discussing regulatory mismatches); see also Buxbaum, Transnational, supra note 71, at 297-305 (discussing conflict of laws concerns in transnational regulatory litigation).

(110.) The increasing availability of class and collective relief in domestic legal systems has increased the likelihood of procedural discrepancies between the way different national systems handle large-scale litigation. See supra note 57 (describing the wide range of approaches to large-scale litigation in different national courts); see also Extraterritoriality and Collective Redress (Duncan Fairgrieve & Eva Lein eds., 2012).

(111.) See In re Vivendi Universal, No. 02 Civ. 5571, 2009 WL 855799, at *3 (S.D.N.Y. Mar. 31, 2009) (explaining that France currently does not have class-action litigation or an opt-in policy, and noting concerns about the constitutionality of these procedures); Rachael Mulheron, The Case for an Opt-Out Class Action for European Member States: A Legal and Empirical Analysis, 15 Colum. J. Eur. L. 409, 426-27 (2009) (explaining that "while the opt-out approach is not common in Europe, it has existed in some version for over a decade, and has been adopted with some recent momentum"); Monestier, supra note 29, at 44-45 (discussing Europe's general aversion to U.S.-style class actions); Wasserman, supra note 29, at 332-69 (discussing the preclusive effect of group litigation in European jurisdictions). Although concerns regarding the international enforceability of a class award may seem to relate only to the tail end of a dispute, the issue actually arises very early on, since many U.S. judges take future enforceability into account during certification proceedings and will not allow an international class to go forward if the defendant cannot be assured that any resulting judgment will be given preclusive effect in other jurisdictions. See Monestier, supra note 29, at 7, 10-13, 31 (discussing how issues relating to international enforcement arise); Wasserman, supra note 29, at 379-80 (describing concerns about the res judicata effect of U.S. class judgments outside the United States).

(112.) See Buxbaum, Securities, supra note 29, at 37, 62 (discussing procedural difficulties associated with global class actions); Buxbaum, Transnational, supra note 71, at 268 (discussing issues relating to global class actions).

(113.) Buxbaum, Transnational, supra note 71, at 282; see also Nagareda, supra note 23, at 37 (discussing need for international remedies to global injuries); Stewart, supra note 15, at 697 (discussing issues relating to global regulation). As the Second Circuit stated recently:
   [F]oreign companies are creatures of other states. They are subject
   to corporate governance and government regulation at home. They are
   often engines of their national economies, sustaining employees,
   pensioners and creditors--and paying taxes.... American courts and
   lawyers [do not] have the power to bring to court transnational
   corporations of other countries, to inquire into their operations
   in third countries, to regulate them--and to beggar them by
   rendering their assets into compensatory damages, punitive damages,
   and (American) legal fees.


Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 268, 270 (2d Cir. 2011) (discussing claims under the Alien Tort Claims Act).

(114.) See Anne Orford, Jurisdiction Without Territory: From Holy Roman Empire to the Responsibility to Protect, 30 Mich. J. Int'l L. 981, 981-82, 1013 (2009) (noting these views arose in the 16th and 17th centuries).

(115.) See Hensler, Future, supra note 30, at 250-55 (discussing the jurisdictional questions that may arise as global markets more closely integrate); see supra notes 95-96 and accompanying text (referring to the negative consequences and potential issues that may arise if there is a lack of cooperation among different national systems).

(116.) These problems include regulatory gaps, regulatory duplication, and regulatory inconsistency. See Nagareda, supra note 23, at 13 (defining regulatory mismatches); see also infra notes 127-28 and accompanying text (discussing problems with transnational regulatory litigation).

(117.) See Buxbaum, Securities, supra note 29, at 16-18 (referring to the various problems that can arise in international regulatory litigation); Buxbaum, Transnational, supra note 71, at 253-56 (providing an overview of the goals of transnational regulatory litigation); Nagareda, supra note 23, at 2-10 (discussing problems such as "regulatory mismatches"); Strong, Regulatory Litigation, supra note 25 (discussing the possible ramifications of regulatory mismatches).

(118.) Buxbaum, Transnational, supra note 71, at 257; see id. at 254-55 (discussing the consequences of international regulatory litigation).

(119.) Id. at 255.

(120.) See Buxbaum, Securities, supra note 29, at 62 (discussing foreign policy implications of transnational regulatory litigation); Buxbaum, Transnational, supra note 71, at 268-70 (discussing potential problems relating to transnational regulatory litigation).

(121.) See Buxbaum, Transnational, supra note 71, at 255 (citing examples under U.S. antitrust law, securities law, and the Racketeering Influenced and Corrupt Organizations Act (RICO)). This is assuming that the forum state can find a means of applying national law extraterritorially. National legislatures typically do not intend their laws to have extraterritorial effect, particularly in the politically sensitive realm of regulatory law. See id. at 272, 296-97 (discussing limitations placed on the use of domestic law in international disputes); see also Luff, supra note 21, at 113-14 (discussing the extraterritorial effect of global class actions); Ventoruzzo, supra note 108, at 436 (discussing Congress' creation of the Foreign Trade Antitrust Improvements Act of 1982, which gives U.S. courts jurisdiction over certain conduct affecting domestic markets).

(122.) Buxbaum, Securities, supra note 29, at 37 (discussing the U.S. interest in enforcing its securities laws); see also Kirschner, supra note 108 (discussing interest in extraterritorial application of domestic law); Stefan Michael Kroll, The "Arbitrability" of Disputes Arising from Commercial Representation, in Arbitrability: International and Comparative Perspectives 317, [paragraph][paragraph] 16-57 to 16-65 (Loukas A. Mistelis & Stavros L. Brekoulakis eds., 2009) (suggesting courts are less inclined to enforce foreign forum selection clauses than arbitration agreements because of concerns about the application of mandatory rules of law). For example, U.S. courts may be disinclined to decline jurisdiction on grounds of forum non conveniens in cases where "the claims of U.S. nationals ... strongly implicate local regulatory interests." Buxbaum, Securities, supra note 29, at 37-38.

(123.) See George A. Bermann, U.S. Class Actions and the "Global Class", 19 Kan. J.L. & Pub. Pol'y 91, 94 (2009) (discussing U.S. courts' ability to exercise jurisdiction over foreign parties); Monestier, supra note 29, at 71 (discussing European courts' reluctance to adopt U.S.-style class actions).

(124.) See Fed. R. Civ. P. 23(b)(3) (only permitting class actions if they are superior to other available methods of adjudication); Buxbaum, Securities, supra note 29, at 66-67 (discussing the difficulties that might be present when creating global classes, such as conflicting domestic and foreign laws).

(125.) See Bermann, supra note 123, at 93-101 (outlining various unresolved problems with global class actions); Buxbaum, Securities, supra note 29, at 35 (describing concerns regarding global class actions in U.S. courts); Nagareda, supra note 23, at 11-12 (discussing regulatory mismatches); Choi & Silberman, supra note 29, at 465 (analyzing extraterritoriality issues in global securities class action lawsuits); Dixon, supra note 29, at 134 (discussing extraterritorial application of U.S. class action judgments); Monestier, supra note 29 (comparing aggregate litigation mechanisms in Europe and the U.S.); Mulheron, Vivendi, supra note 29, at 181-82 (discussing issues regarding the extraterritorial application of U.S. class action judgments); Wasserman, supra note 29, at 332-69 (providing a comparison of different large-scale litigation techniques and doctrines).

(126.) See The Annals, supra note 26, at 10-11 (discussing 30 different national regimes); see also supra note 57 and accompanying text (discussing different forms of large-scale litigation outside the United States).

(127.) See Morrison v. Nat'l Austl. Bank Ltd., (130) S. Ct. 2869, 2888 (2010) (discussing foreign-cubed securities actions). An "f-cubed" (or "foreign-cubed") action involves "actions in which '(1) foreign plaintiffs [are] suing (2) a foreign issuer in an American court for violations of American securities laws based on securities transactions in (3) foreign countries.'" Id. at 2895 n.11 (Breyer, J., concurring) (citations and emphasis omitted). Commentators have suggested that the United States, which once led the world in policing the worldwide actions of multinational corporations, has retreated from that position in recent years. See Kirschner, supra note 108, at 259-263 (noting European jurisdictions are primed to take the lead in policing large-scale international abuses of human rights); Ventoruzzo, supra note 108, at 405 (discussing the limitations on extraterritorial application of U.S. law after Morrison).

(128.) Mark Gelowitz, Court Certifies Class Action Against Imax: Liability May Be Coming Soon to a Theatre Near You, Law. Wkly. (Feb. 19, 2010), http://www.lawyersweekly.ca/index.php?section=article &articleid=1103; Silver v. Imax Corp., [2009] O.J. No. 5573 (Can. Ont. Sup. Ct. J.); see also Silver v. Imax Corp., [2009] O.J. No. 5585 (Can. Ont. Sup. Ct. J.) (demonstrating a willingness to allow global class action suits); Tanya Monestier, Is Canada the New Shangri-La of Global Securities Class Actions?, 12 Nw. J. Int'l L. & Bus. 305, 308 (2012) (noting Canada's willingness to address multinational securities disputes); Strong, Canada, supra note 30, at 927 (discussing Canada's willingness to address multi-jurisdictional classes).

(129.) See Arjan de Boode & Allard Huizing, The Netherlands as an Alternative Forum for Cross Border Class Settlements and the Potential Consequences for Claims by "Foreign Cubed" Plaintiffs Under US Securities Laws, GT Alert (Jan. 14, 2010), http://www.gtlaw.com/News-Events/Publications/Alerts/132898/ The-Netherlands-as-an-Alternative-Forum-for-Cross-Border-Class-Settlements-and-the-PotentialConsequences-for-Claims-by-Foreign-Cubed-Plaintiffs-under-US-Securities-Laws (discussing, inter alia, the Shell and Vedior settlements, both confirmed by Dutch courts in mid-2009); Ianika Tzankova & Daan Lunsingh Scheurleer, The Netherlands, in The Annals, supra note 26, at 149, 153-55 (discussing the Dutch Collective Settlements Act). Interestingly, the European Union and its Member States may be taking a larger role in the policing of multinational actors. See Kirschner, supra note 108, at 281 (discussing Dutch courts' willingness to accept jurisdiction over international disputes).

(130.) See Ventoruzzo, supra note 108 at 413, 443 (discussing problems with transnational litigation).

(131.) For example, the European Union adopted a resolution in February 2012 calling for the creation of a coherent European approach to cross-border collective redress. See Resolution, of the European Parliament of 2 February 2012 on Towards a Coherent European Approach to Collective Redress, P7_TA(2012)0021 (detailing a suggested approach for developing a uniform collective redress system); S.I. Strong, Cross-Border Collective Redress in the European Union: Constitutional Rights in the Face of the Brussels I Regulation, 45 Ariz. St. L.J. (forthcoming 2013) (manuscript at 4) (discussing pros and cons of proposed European-wide system of cross-border collective redress).

(132.) For example, the American Bar Association, the American Law Institute, the Canadian Bar Association, and the International Bar Association have all adopted protocols regarding cross-border class and collective lawsuits. See generally Am. Bar Ass'n, Protocol on Court-to-Court Communications in Canada-U.S. Cross-Border Class Actions and Notice Protocol: Coordinating Notice(s) to the Class(es) in Multijurisdictional Class Proceedings (2011), available at http://www.cba.org/cba/ resolutions/pdf/11-03-A-bckd.pdf (proposing a notice protocol between U.S. and Canadian courts); Am. Law Inst., Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases (2000), available at http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions _and_notices/General/Guidelines%20Cross-Border%20Cases.pdf (describing guidelines for communications in crossborder cases); Am. Law Inst., Principles of the Law of Aggregate Litigation (2010) (describing protocols for cross-border collective lawsuits); Can. Bar Ass'n., Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions (June 2011), available at http://www.cba.org/CBA/ClassActionsTaskForce/PDF/Consultation_eng.pdf (describing a formal framework for multijurisdictional class action proceedings in Canada); Int'l Bar Ass'n, Guidelines for Recognising and Enforcing Foreign Judgments for Collective Redress (2008) (identifying proposed guidelines "for the procedural and substantive rights to be afforded by a court issuing a collective redress judgment to the persons it purports to bind"); Betsy M. Adeboyejo, Protocols for Cross-Border Cases ... Will They Work?, ABA Now (Aug. 6, 2011), www.abanow.org/2011/08/protocols-for-cross-border-cases-%E2% 80%A6-willthey-work/ (discussing cross-border class action practice between the U.S. and Canada).

(133.) Buxbaum, Securities, supra note 29, at 63-64; see also Ventoruzzo, supra note 108, at 406-07 (expressing concerns about judicial overreaching).

(134.) Buxbaum, Securities, supra note 29, at 64. However, some commentators "point[] to the [continuing] willingness of U.S. legislators to leverage the deterrent function of private actions under U.S. law for the benefit of the global community," at least with respect to some issues. Buxbaum, Transnational, supra note 71, at 267-68.

(135.) Glover, supra note 20, at 1211.

(136.) Id.

(137.) See Abbott & Snidal, supra note 18, at 520-63 (comparing traditional forms of governance theory with new governance theory); Christopher Hodges, Collective Redress in Europe: The New Model, 29 Civ. Just. Q. 370, 380-81 (2010) (describing various means of regulation in Europe); Christopher Hodges, From Class Actions to Collective Redress: A Revolution in Approach to Compensation, 28 Civ. Just. Q. 41, 54-55 (2009) (noting regulatory options in Europe); Samuel, supra note 23, at 653-54, 656-62.

(138.) See Samuel, supra note 23, at 680, 693 (noting injured parties may not know they have been harmed in a self-regulatory and ombudsman schemes). For example, "self-regulation often lacks the teeth necessary to attain its full potential. What is lacking ... is the sanctioning mechanisms needed to ensure compliance with the standards elaborated voluntarily by and within the industry." Daphne Richemond-Barak, Regulating War: A Taxonomy in Global Administrative Law, 22 Eur. J. Int'l L. 1027, 1068 (2011).

(139.) See Buxbaum, Transnational, supra note 71, at 267, 309-14 (suggesting state consent would "permit courts to consider in a more balanced way the arguments presented for and against U.S. jurisdiction in transnational regulatory cases"); see also Buxbaum, Securities, supra note 29, at 68 (contemplating state consent as a means of overcoming problems with transnational regulatory litigation).

(140.) For example, the European Union, on behalf of itself and several Member States, agreed to U.S. jurisdiction in a case seeking damages, equitable relief, and injunctive relief under RICO to deter certain acts that could "facilitate organized crime, narcotics trafficking, and even terrorism." Brief for Plaintiffs-Appellants at 9, European Cmty v. RJR Nabisco, 355 F.3d 123 (2d Cir. 2004) (Nos. 02-7330, 02-7325), cert. granted, vacated, 544 U.S. 1012 (2005); see also Buxbaum, Transnational, supra note 71, at 267, 309-14 (discussing European Union's consent to exercise of U.S. jurisdiction).

(141.) See S.I. Strong, Class and Collective Relief in the Cross-Border Context: A Possible Role for the Permanent Court of Arbitration, 23 Hague Y.B. Int'l L. 2010, 113, 133-39 (2011) [hereinafter Strong, pca] (discussing state-to-state arbitration at the PCA).

(142.) See id. at 133-39 (noting the PCA has created "numerous mass claims commissions and tribunals over the years"). The dissent in Abaclat drew certain parallels to the PCA's mass claims processes in its award, although not everyone considers investment arbitration and mass claims processes to be similar in nature. See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 176-89 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/ files/case-documents/ita0237.pdf; Dimsey, supra note 11, at 202 ("At the Permanent Court of Arbitration at The Hague, such procedures have been developed to deal with mass claims."); Strong, Mass Torts, supra note 39 (distinguishing Abaclat from mass claims processes at The Hague).

(143.) See Strong, pca, supra note 141 ("[T]he PCA is well-known for being able to craft new dispute resolution mechanisms."). Although many people view the PCA's mass claims processes as primarily dealing with humanitarian conflicts and violations of public international law, the nature of the claims addressed by the various tribunals and commissions include those sounding in contract, property, insurance, and personal injury, thus suggesting that the PCA can address a wide variety of issues, including those of an economic or regulatory nature, so long as the requisite state consent exists. See John R. Crook, Mass Claims Processes: Lessons Learned over Twenty-Five Years, in Redressing Injustices Through Mass Claims Processes: Innovative Responses to Unique Challenges 41, 42-55 (Permanent Court of Arbitration ed., 2006) (discussing various mass claim processes and related programs); Hans Das, The Concept of Mass Claims and the Specificity of Mass Claims Resolution, in Redressing-Injustices Through Mass Claims Processes: Innovative Responses to Unique Challenges 3, 9 (Permanent Court of Arbitration ed., 2006) ("[M]ass claims processes are very specific types of claims processes."). However, if parties wish to address human rights or social justice concerns in a single mass proceeding, that is entirely possible, as the U.S. experience with class actions shows. See Johnson, supra note 7, at 654-55, 658 (discussing how U.S. class actions addressed social justice issues); see also Greenberg, supra note 75, at 585 (describing how class actions afforded rights to individuals who might otherwise not have had a voice).

(144.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 162-75, 190-91 (Abi-Saab, dissenting) (claiming special or secondary consent was required).

(145.) See Hensler, Future, supra note 30, at 256-59 (describing use of private arbitration); Nagareda, supra note 23, at 10 (suggesting arbitration "might seek to provide a degree of de facto global governance in civil justice, though conceivably of a less transparent sort"); Strong, Mass Torts, supra note 39 (discussing postdispute arbitration agreements in mass torts).

(146.) See Tzankova & Scheurleer, supra note 129 (describing the Dutch Act on Collective Settlements).

(147.) For example, only five cases have been brought under the Act on Collective Settlements, while over 300 class arbitrations have been filed with one arbitral institution alone. See Daan Lunsigh Scheurleer, Speech at The Hague Institute for the Internationalisation of Law and Netherlands Institute for Advanced Study in the Humanities and Social Sciences Conference on Collective Redress in the Cross-Border Context: Arbitration, Litigation and Beyond--The Cross-Border Implications of the Dutch Collective Settlements Act: A Practitioner's View (June 20-22, 2012); Class Arbitration Case Docket, Am. Arb. Ass'n, http://adr.org (select "class arbitration case docket" under "services" tab) (last visited Dec. 18, 2012) (listing over 300 class arbitrations filed since 2003).

(148.) Class arbitrations in the United States have resolved claims involving consumer, employment, healthcare, franchising, financial services, commercial, maritime, and antitrust law since the early 1980s. See Keating v. Superior Court, 645 P.2d 1192, 1208-09 (Cal. 1982) (holding that courts had the authority to order classwide arbitration), rev'd on other grounds sub nom., Southland Corp. v. Keating, 465 U.S. 1 (1984); Brief of American Arbitration Association (AAA) as Amicus Curiae in Support of Neither Party at 22-24, Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010) (No. 08-1198) (noting 37% of all class arbitrations administered by the AAA since 2003 involved consumer actions, 34% involved employment actions, 7% involved franchising, 7% involved healthcare, 3% involved financial services, and 11% involved other business-to-business concerns); Class Arbitration Case Docket, supra note 147 (listing class arbitrations since 2003); Carole J. Buckner, Toward a Pure Arbitral Paradigm of Classwide Arbitration: Arbitral Power and Federal Preemption, 82 Denv. U. L. Rev. 301, 301 (2004) (noting that arbitration is used in various contexts); Edward F. Sherman, Group Litigation Under Foreign Legal Systems: Variations and Alternatives to American Class Actions, 52 DePaul L. Rev. 401, 407 (2002) (discussing the use of class actions in different contexts); Strong, De-Americanization, supra note 43, at 525 (noting that class arbitration can be used in a number of subject matter areas).

(149.) See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010) (involving an international antitrust dispute in the maritime context); Harvard College v. JSC Surgutneftegaz, No. 04 Civ. 6069, 2007 WL 3019234, at *3 (S.D.N.Y. Oct. 11, 2007) (confirming international class arbitration award).

(150.) See Keating, 645 P.2d at 1209-10 (holding class arbitration an acceptable means of resolving largescale disputes); Gary Born & Claudio Salas, The United States Supreme Court and Class Arbitration: A Tragedy of Errors, 2012 J. DlSP. Resol. 21, 21 (2012) (discussing history of U.S. class arbitration).

(151.) See, e.g., AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1748 (2011) (enforcing waiver of class arbitration); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1175 (2010) (addressing issues of contractual silence or ambiguity concerning class procedures in arbitration); Jock v. Sterling Jewelers Inc., 646 F.3d 113, 127 (2d Cir. 2011), cert. denied, 132 S. Ct. 1742 (2012) (noting the continued viability of class arbitration); see also S.I. Strong, Does Class Arbitration "Change the Nature" of Arbitration? Stolt-Nielsen, AT&T and a Return to First Principles, 17 HARV. Negot. L. Rev. 201, 226-29 (2012) [hereinafter Strong, First Principles] (discussing the future of class arbitration in the wake of Stolt-Nielsen and AT&T Mobility); S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity?, 30 MICH. J. Int'l L. 1017, 1021 (2009) [hereinafter Strong, Sounds of Silence] (defining international class arbitration); Gregory A. Litt, Speech at The Hague Institute for the Internationalisation of Law and Netherlands Institute for Advanced Study in the Humanities and Social Sciences Conference on Collective Redress in the Cross-Border Context: Arbitration, Litigation and Beyond--The United States Class Arbitration Experience (June 20-22, 2012) (providing empirical data showing class arbitration filings with the American Arbitration Association through 2012).

(152.) See Manitoba Law Reform Comm'n, Mandatory Arbitration Clauses and Consumer Class Proceedings 3-4, 22-23 (April 2008); Valencia v. Bancolombia (Colom. v. Colom.), (Bogota Chamber of Comm. 2003), digest by Jaramillo for Institute for Transnational Arbitration (ITA), available at kluwerarbitration.com; Kuck & Litt, supra note 9, at 720-23 (discussing Colombia's use of class arbitration); Strong, Canada, supra note 30, at 961-64 (discussing possible development of class arbitration in Canada); Strong, De-Americanization, supra note 43, at 499-501 (discussing the adoption of class or collective arbitration outside the United States).

(153.) See Class Arbitration Case Docket, supra note 147.

(154.) A few adjustments have been made to take certain arbitration-related concerns into account. See Fed. R. Civ. P. 23 (governing class actions in federal court). See generally Am. ARBITRATION ASS'N, Supplementary Rules for Class Arbitrations (2003), available at www.adr.org/sp.asp?id=21 936 (select "search rules" under "rules & procedures" tab and search for "supplementing rules for class arbitrations") [hereinafter AAA Supplementary Rules]; JAMS, JAMS Class Action Procedures (2009), available at http://www.jamsadr.com/rules-class-action-procedures/; Strong, De-Americanization, supra note 43, at 494. The similarities between the class arbitration rules and Rule 23 of the Federal Rules of Civil Procedure were intentional, since the drafters of the arbitral rules wanted to provide courts and arbitrators with the opportunity of relying on existing judicial precedents when construing the arbitral rules. See Meredith W. Nissen, Class Action Arbitrations: AAA vs. JAMS: Different Approaches to a New Concept, 11 Disp. Resol. Mag. 19, 19-21 (2005) (discussing the adoption of AAA and JAMS rules on class arbitration). It is unclear whether and to what extent non-rule-based forms of class arbitration (the so-called "hybrid" form of class arbitration, a term that predated Abaclat) are still available in the United States. See Buckner, supra note 148 (claiming the hybrid model has been "swept away").

(155.) Interestingly, class arbitration offers some unique benefits that suggest parties (particularly respondents) should prefer class arbitration to class litigation. A full discussion of these benefits is beyond the scope of this Article, but further reading is available. See Dana H. Freyer & Gregory A. Litt, Desirability of International Class Arbitration, in Contemporary Issues in International Commercial Arbitration and Mediation: The Fordham Papers 171, 171-81 (Arthur W. Rovine ed., 2008) (discussing pros and cons of class arbitration); Hans Smit, Class Actions and Their Waiver in Arbitration, 15 Am. Rev. Int'l Arb. 199, 210-12 (2004) (critiquing class arbitration); Strong, Mass Torts, supra note 39 (discussing the benefits of class arbitration); Strong, pca, supra note 141, at 115-33 (comparing large-scale litigation and arbitration).

(156.) See Strong, Canada, supra note 30, at 969-71 (suggesting that regulatory issues should be considered in the context of class arbitration).

(157.) The conventional wisdom is that corporate parties are routinely using class waivers found in arbitration agreements as a means of eliminating all forms of class relief, although this assertion does not appear to be substantiated by empirical evidence. See Christopher R. Drahozal & Peter B. Rutledge, Contract and Procedure, 94 Marq. L. Rev. 1103, 1139 (2011) (noting many arbitration agreements are silent as to class treatment). While the extent to which these waivers are used may be subject to debate, what appears clear is that they are not universally successful, since judges occasionally refuse to enforce the waiver and return the dispute to the courts for possible class proceedings. See In re Am. Express Merchs. Litig., 667 F.3d 204, 218 (2012) (striking class waiver and holding arbitration agreement unenforceable); see also Seidel v. Telus Commc'ns, Inc., [2011] 1 S.C.R. 531 1fl| 37, 39 (Binnie, J.) (Can.) (enforcing arbitration only as between parties). Should the enforceability of class waivers become too unpredictable, corporate respondents may wish to make a choice between class litigation and class arbitration. Given the various advantages of class arbitration over class litigation, corporate respondents may decide to insert a provision into the arbitration agreement requiring class claims to be brought in arbitration, as opposed to litigation. See supra note 155 (referencing articles discussing class arbitration and the relative benefits). Corporate respondents could also seek class arbitration through a compromis in cases where a class waiver has led to a potentially debilitating number of individual arbitrations being brought. See Strong, Mass Torts, supra note 39; see also AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (regarding use of class waivers); AT&T Sues Customers Seeking to Block T-Mobile Deal, Reuters, Aug. 17, 2011, http://www.reuters.com/article/2011/08/17/us-tmobile-att-lawsuits-idUSTRE77G590 20110817 (discussing AT&T's surprise when approximately 1000 individual arbitration requests were filed by customers after the U.S. Supreme Court upheld the waiver of class proceedings in their arbitration agreements). Although the concept of a compromis at one time seemed impossible because of concerns about the practical feasibility of obtaining a post-dispute agreement to arbitrate on a classwide basis, such agreements now appear possible. Compare Carolyn B. Lamm & Joceyln A. Aqua, Defining the Party--Who Is a Proper Party in an International Arbitration Before the American Arbitration Association and Other International Institutions, 34 Geo. Wash. Int'l L. Rev. 711, 717-18 (2002-03) (suggesting post-dispute arbitration agreements are impossible in class disputes), with Strong, Mass Torts, supra note 39 (suggesting post-dispute arbitration agreements are possible in class disputes).

(158.) See infra notes 253-62 and accompanying text (discussing regulatory issues in class arbitration).

(159.) Some courts have allowed collective arbitration of Fair Labor Standards Act (FLSA) claims despite a prohibition of class arbitration under Financial Industry Regulatory Authority (FINRA) Arbitration Rules on the grounds that
   [a]lthough collective and class actions have much in common, there
   is a critically important difference: collective actions are opt-in
   actions, i.e., each member of the class must take steps to opt in
   to the action in order to participate in it, whereas class actions
   are opt-out actions, i.e., class members automatically participate
   in a class action unless they take affirmative steps to opt out of
   the class action. Collective actions bind only similarly situated
   plaintiffs who have affirmatively consented to join the action.


Velez v. Perrin Holder & Davenport Capital Corp., 769 F. Supp. 2d 445, 446-47 (S.D.N.Y. 2011). Other courts have differentiated between class and collective arbitration on the grounds that
   [c]lass arbitration and the collective proceeding that the pilots
   have demanded here are so fundamentally different that
   Stolt-Nielsen does not dictate the result. In the collective
   arbitration sought here, unlike in a class arbitration, all of the
   affected pilots are actual parties. Further, in a class proceeding,
   common issues need only "predominate" over issues that are unique
   to individual members; identity of issues is not required. Here,
   there is only one straightforward question that needs to be
   answered by the arbitration panel, and its disposition will equally
   affect each and every pilot. Thus, because the type of proceeding
   demanded by the pilots is not, like a class proceeding, so
   fundamentally different from an ordinary arbitration, we cannot,
   unlike the Supreme Court in Stolt-Nielsen, definitively say that
   the parties did not agree to it.


JetBlue Airways Corp. v. Stephenson, 88 A.D.3d 567, 573-74 (N.Y. App. Div. 2011) (internal citations omitted); see Jan-Krzyztof Dunin-Wasowicz, Collective Redress in International Arbitration: An American Idea, a European Concept?, 22 Am. Rev. Int'l Arb. 285, 321 (2011) (discussing various problems associated with opt-in and opt-out procedures).

(160.) See Velez, 769 F. Supp. 2d at 446-47 (allowing collective arbitration for labor and compensation disputes); JetBlue Airways Corp., 88 A.D.3d at 573-74 (allowing collective arbitration for statutory claims); Hensler, supra note 53, at 16 (describing the U.S. class action design features: "standing for private actors to represent a class, trans-substantive application of the procedure, availability of money damages, and an opt-out rather than an opt-in procedure for money damage class actions ... ").

(161.) See Real Decreto-ley de 15 de febrero arts. 56-62 (B.O.E. 2008, 231); see also Laura Carballo Pineiro, Speech at The Hague Institute for the Internationalisation of Law and Netherlands Institute for Advanced Study in the Humanities and Social Sciences Conference on Collective Redress in the Cross-Border Context: Arbitration, Litigation and Beyond--Collective Actions and Arbitration in Spain: Still Dealing with Territoriality and Adequacy of Representation (June 20-22, 2012).

(162.) See Bundesgerichtshof [BGH] [Federal Court of Justice] Apr. 6, 2009, II ZR 255/08 (Ger.), available at www.kluwerarbitration.com; Deutsche Inst. Fur Schiedsgerichtsbarkeit, Supplementary Rules for Corporate Law Disputes, http://www.dis-arb.de/en/16/rules/dis-supplementary-rules-for-corporate-lawdisputes-09-srcold-id15 (last visited Dec. 18, 2012); Christian Borris, Arbitrability of Corporate Law Disputes in Germany, in Onderneming en ADR 55, 55-71 (C.J.M. Klaassen et al. eds., 2011) (discussing arbitration in shareholder disputes, namely involving limited liability companies); S.I. Strong, Collective Arbitration Under the DIS Supplementary Rules for Corporate Law Disputes: A European Form of Class Arbitration?, 29 ASA Bull. 45, 47 (2011) [hereinafter Strong, DIS] (discussing collective arbitration in Germany).

(163.) See Strong, De-Americanization, supra note 43, at 494 (discussing how large-scale arbitration could develop outside the United States). See generally Class Actions and Arbitration in the European Union (Philippe Billiet et al. eds., 2012).

(164.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, [paragraph][paragraph] 483, 488 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case-documents/ita0236.pdf (discussing the development of a new form of mass arbitration).

(165.) See id [paragraph][paragraph] 530-31 (discussing the requirements that must be in place to permit large-scale procedures).

(166.) Id. [paragraph] 530; see also id. [paragraph]531 (discussing the content of the examination).

(167.) Id. [paragraph] 530.

(168.) Id. [paragraph] 531.

(169.) See id. [paragraph][paragraph] 530-31.

(170.) Id. [paragraph][paragraph] 532, 546. Although some jurisdictions, most notably the United States, would find it problematic to have what looks like a lead plaintiff acting without any sort of independent interest in the dispute, a number of states permit or even require this type of procedural approach. See Hensler, supra note 53, at 14 (discussing the different parties who may have legal standing to bring representative litigation); Strong, De-Americanization, supra note 43, at 503-04 (noting various jurisdictions permit or require a representative entity to pursue large-scale claims); see also supra note 89 and accompanying text.

(171.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 546; S.I. Strong, Cross-Border Collective Redress and Individual Participatory Rights: Quo Vadis? (forthcoming 2013) [hereinafter Strong, Individual Participatory Rights] (describing individual participatory rights). The majority noted, however, that Argentina could present arguments about whether informed consent was in fact obtained from various individual claimants during the merits phase of the proceedings. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 466 (noting the debate about the legitimacy of consent in some individual cases).

(172.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 536.

(173.) Id.

(174.) Id. [paragraph] 537.

(175.) Id. [paragraph] 540.

(176.) Id. [paragraph] 541.

(177.) Id. [paragraph] 667 (stating that the tribunal should obtain an overview of the merits of the dispute before deciding procedural issues).

(178.) See id [paragraph] 666 (stating the tribunal contemplated the "possibility" of using such proceedings).

(179.) See id [paragraph] 668.

(180.) See id (describing procedure to be adopted).

(181.) See id [paragraph] 669 (describing procedure to be adopted).

(182.) Id. [paragraph] 668 (stating the second phase is dependent on the result of the first phase).

(183.) Id.

(184.) Glover, supra note 20, at 1137; see also Luff, supra note 21, at 113 (noting regulatory litigation fills regulatory gaps).

(185.) Nagareda, supra note 23, at 10.

(186.) See Hensler, Future, supra note 30 (discussing trends in resolution of large-scale disputes); Strong, Canada, supra note 30, at 978-80 (discussing possible use of arbitration to resolve cross-border class claims).

(187.) The U.S. Supreme Court issued two key decisions on class arbitration shortly after Nagareda's article was published. See generally AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (discussing waivers of class arbitration); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010) (discussing contractual silence or ambiguity regarding class treatment); see also supra notes 150-57 and accompanying text (discussing history of class arbitration in the u.S.).

(188.) Most commentators believe that class and collective arbitration are suitable for international disputes, although there are some contrary views. See Gary B. Born, International Commercial Arbitration 1232 (2009) (stating class arbitration appears appropriate in international disputes); Alexander Blumrosen, The Globalization of American Class Actions: International Enforcement of Class Action Arbitral Awards, in Multiple Party Actions in International Arbitration: Consent, Procedure and Enforcement 355, 362 (Belinda Macmahon ed., 2009) (suggesting class arbitration is not appropriate in international disputes); Kuck & Litt, supra note 9, at 728-36 (discussing the problem of international recognition and enforcement of class arbitrations); Strong, Canada, supra note 30, at 941-43 (discussing the possibilities of class arbitration in international disputes); Strong, De-Americanization, supra note 43, at 494 (discussing possible spread of class arbitration outside the U.S.); Strong, Sounds of Silence, supra note 151, at 1083-91 (discussing international enforceability of class awards).

(189.) See Luff, supra note 21, at 113 (discussing difficulties with regulatory litigation in the united States); Scott, supra note 14, at 664 (noting that significant questions arise as to the propriety of allowing states to delegate regulatory authority to other actors, including non-state and supranational bodies).

(190.) Such concerns will revolve around issues such as the propriety of allowing private litigants to engage in regulatory behavior through the bringing of legal claims. See generally Strong, Regulatory Litigation, supra note 25 (discussing contemporary issues in regulatory litigation); supra notes 89-146 (discussing various regulatory concerns in the transnational context).

(191.) See Strong, Regulatory Litigation, supra note 25 (discussing institutional design issues); see also Luff, supra note 21, at 101 (discussing regulatory litigation in the larger institutional context); Glover, supra note 20, 1141-43 (discussing regulatory litigation design issues); Filippo Valguarnera, Legal Tradition as an Obstacle: Europe's Difficult Journey to Class Action, 10 Global Jurist 1, 19 (2010) (discussing regulatory issues in the u.S. and European union).

(192.) This Article uses the terms "arbitrable" and "arbitrability" in their international sense to describe which disputes can be heard in arbitration and which are reserved to the exclusive purview of the courts. See Kroll, supra note 122, [paragraph] 16-7 (distinguishing two forms of arbitrability); see also United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, arts. V(2)(a) (discussing arbitrability in international proceedings).

(193.) See Lew et al., supra note 68, [paragraph] 9-2 (referring to "objective arbitrability").

(194.) See id

(195.) Gary Born has noted that "it is difficult to see what ... non-arbitrability objections could be raised to class arbitrations" in the international context. Born, supra note 188, at 1232 n.442.

(196.) See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 636-37 (1985) (allowing antitrust matter to proceed in arbitration); Case C-126/97, Eco Swiss China Time Ltd. v. Benetton Int'l NV, 1999 E.C.R. I-3055 (allowing competition law matter to proceed in arbitration); In re Am. Express Merchs. Litig., 667 F.3d 204, 214-15 (2d Cir. 2012) (allowing antitrust claims to be brought in arbitration); Born, supra note 188, at 781-85 (discussing various regulatory concerns that are amenable to arbitration in the United States and Europe); Lew et al., supra note 68, [paragraph][paragraph] 9-19 to 9-26, 9-42 to 9-47 (discussing arbitrability of regulatory concerns).

(197.) See Born, supra note 188, at 799-802 (discussing arbitrability of securities disputes in the United States and Germany).

(198.) Not all class, mass, or collective proceedings are regulatory. See Mulheron, supra note 7, at 63-66 (distinguishing regulatory class actions from non-regulatory class actions).

(199.) Up until this point, the principle of arbitrablity has been defined as relating solely to subject matter concerns. See Lew et al., supra note 68, [paragraph] 9-2 (discussing "objective arbitrability"). Notably, none of the U.S. Supreme Court cases on class arbitration have raised the issue of arbitrability, possibly because a determination that a particular procedure is non-arbitrable would mean that the issue should be returned to the courts, and the class remedy is not a procedure that the Court wishes to protect. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1753 (2011) (discussing use of waivers in class arbitration); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1767 (2010) (discussing arbitration agreements that were silent or ambiguous as to class treatment); Strong, First Principles, supra note 151, at 265 (stating that the Supreme Court intentionally avoided mentioning arbitrability in Stolt-Nielsen because the dispute would have to be returned to court).

(200.) See Lew et al., supra note 68, [paragraph][paragraph] 9-1 to 9-98 (explaining what types of issues are arbitrable); Strong, First Principles, supra note 151, at 212 (defining traditional multiparty proceedings as involving three to five parties).

(201.) W. Laurence Craig, Some Trends and Developments in the Laws and Practice of International Commercial Arbitration, 30 Tex. Int'l L.J. 1, 8 (1995); Thomas J. Stipanowich, Arbitration and the Multiparty Dispute: The Search for Workable Solutions, 72 Iowa L. Rev. 473, 476 (1987).

(202.) See supra note 87 and accompanying text (defining regulatory effects).

(203.) See Lew et al., supra note 68, [paragraph][paragraph] 7-36 to 7-57 (discussing non-signatories in arbitration).

(204.) See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 624 (1985).

(205.) See id at 636-37 (holding that antitrust claims are arbitrable); id. at 655 (Stevens, J., dissenting) (noting that antitrust claims can affect thousands, perhaps even millions, of people).

(206.) See id at 636-37 (allowing antitrust claims to proceed in arbitration).

(207.) See Seidel v. Telus Commc'ns Inc., [2011] 1 S.C.R. 531, [paragraph][paragraph] 55, 66, 85, 142, 146 (Can.) (considering the effect of class-type claims in the face of an arbitration agreement); Strong, Canada, supra note 30, at 95152, 979-80 (discussing possibility of class arbitration in Canada). Injunctions are a key form of regulation, given their forward-looking qualities. See Luff, supra note 21, at 113 (discussing criteria for regulatory litigation); Strong, Regulatory Litigation, supra note 25 (manuscript at 31) (discussing how injunctive relief qualifies as regulatory litigation).

(208.) See Seidel, 1 S.C.R. 531, [paragraph][paragraph] 55, 66, 85, 142, 146 (denying arbitrability of injunctive relief in arbitration under specific legislation); Strong, Canada, supra note 30, at 951-52, 979-80 (discussing possibility of class arbitration in Canada). At one point, California had prohibited the arbitration of issues relating to public injunctive relief, but that provision has not survived AT&T Mobility. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1753 (2011) (discussing waivers in the context of class arbitration); Kilgore v. Keybank, Nat'l Ass'n, 673 F.3d 947, 963 (9th Cir. 2012) (abrogating the Broughton-Cruz rule), reh'ggranted, 697 F.3d 1191 (9th Cir. 2012). This suggests that arbitrators in California now have an expanded ability to engage in regulatory arbitration involving injunctive relief. Notably, investment tribunals have the power to order nonpecuniary relief, including injunctions, although they seldom do so. See McLachlan et al., supra note 10, at 349.

(209.) Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775 (2010); see also AT&T Mobility, 131 S. Ct. at 1751 (citing Stolt-Nielsen); Strong, First Principles, supra note 151, at 201-71 (analyzing whether class arbitration constitutes a type of arbitration).

(210.) There are significant differences between class, mass, and collective arbitration. See S.I. Strong, Class, Mass and Collective Arbitration in National and International Law (forthcoming 2013); see also supra notes 147-82 and accompanying text.

(211.) See supra notes 159-160 and accompanying text (explaining that collective arbitrations involve opt-in procedures and class arbitrations involve opt-out procedures).

(212.) See Strong, First Principles, supra note 151, at 235-41 (discussing policy considerations in class arbitration and traditional multiparty arbitration).

(213.) Access to justice is often considered to be related more to efficiency concerns than regulatory concerns, although there is some debate on that issue. See Strong, Regulatory Litigation, supra note 25 (manuscript at 9) (analyzing the extent to which large-scale litigation in Europe can be considered regulatory).

(214.) See Strong, First Principles, supra note 151, at 246-68 (analyzing whether class arbitration constitutes a form of arbitration).

(215.) Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775 (2010); Strong, First Principles, supra note 151, at 268-71 (concluding that class arbitration is not inherently different than other forms of arbitration).

(216.) The Supreme Court has not reached that question. See Stolt-Nielsen, 130 S. Ct. at 1776 n.10 ("We have no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class-action arbitration."); see also Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 (2d Cir. 2011) (citing Stolt-Nielsen), cert. denied, 132 S. Ct. 1742 (2012); Strong, First Principles, supra note 151, at 253 (noting Supreme Court did not reach this issue).

(217.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 297, 517 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case -documents/ita0236.pdf (discussing the issue of interpreting silence); Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 154-75 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf (discussing the issue of interpreting silence further); see also Bernardo M. Cremades, Multi-Party Arbitration in the New ICC Rules, 2012 Spain Arb. Rev.--Revista del Club Espanol del Arbitraje 23, 30 (2012) (summarizing the Abaclat decision). It is unclear whether and to what extent decisions such as Stolt-Nielsen and AT&T can be considered in the investment realm. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1755 (2011) (discussing use of waivers of class arbitration); Stolt-Nielsen, 130 S. Ct. at 1776 (discussing contractual silence or ambiguity regarding class treatment). Indeed, the majority in Abaclat specifically stated that
   questions of consent under Article 25 ICSID Convention are subject
   to principles of international law, and not pursuant to any
   particular national law. This applies not only with regard to the
   material content of the consent, i.e., to its substantive validity,
   but also with regard to its form, i.e., to its formal validity.


Abaclat, ICSID Case No. ARB/07/5, [paragraph] 430 (internal citation omitted). This suggests that private law precedents are irrelevant to the Abaclat analysis of consent, although the dissent discussed both cases. See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 148-53 (Abi-Saab, dissenting) (discussing Stolt-Nielsen and AT&T Mobility).

(218.) See Strong, First Principles, supra note 151, at 247-50 (discussing the dangers of "quasiarbitration"). It is unclear why such a requirement would exist, unless there was something about class, mass, or collective arbitration that was inherently different than other forms of arbitration, an allegation that does not appear to be true. See id. at 269-71 (concluding that class arbitration is not inherently different than other forms of arbitration); see also supra notes 209-14 and accompanying text (discussing charges that class arbitration is fundamentally different than other forms of arbitration).

(219.) See Strong, First Principles, supra note 151, at 264-66 (discussing arbitability in class arbitration).

(220.) This is because arbitrability is an issue of state concern, not party concern. See Lew et al., supra note 68, [paragraph] 9-2 (noting arbitrability affects state interests).

(221.) See AT&T Mobility, 131 S. Ct. at 1751-52 (questioning use of representative relief but not restricting it); Stolt-Nielsen, 130 S. Ct. at 1763 (explaining that class arbitration is appropriate if a party agreed to do it); Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 451 (2003) (Breyer, J.) (noting that the claimants had consented to arbitration); Keating v. Superior Court, 645 P.2d 1192, 1209 (Cal. 1982) (leaving the issue to the arbitrator), rev'd on other grounds sub nom., Southland Corp. v. Keating, 465 U.S. 1 (1984); Born, supra note 188, at 1232 n.442 (stating that "[i]t is difficult to see what ... non-arbitrability objections could be raised to class arbitrations"); Strong, First Principles, supra note 151, at 250 (noting that the Supreme Court has implicitly held that class arbitration is proper if express consent is present).

(222.) The basis for this conclusion dates back to Mitsubishi Motors Corp., which held that courts that agree to allow certain complex claims to go to arbitration pursuant to the parties' express agreement cannot later claim that those matters are "inherently insusceptible to resolution by arbitration." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 633 (1985); see Strong, First Principles, supra note 151, at 250 ("[T]he Supreme Court clearly took the view that class arbitration would be entirely proper if the parties had demonstrated express consent to such procedures.").

(223.) No such suggestion appears to have been made in Canada, Colombia, Germany, or Spain, which are the four countries known to have considered class or collective arbitration. See supra notes 151, 160-61 and accompanying text (noting, however, that collective arbitration in Spain and Germany are limited to certain subject matters). In fact, the German Federal Court of Justice has expressly held that shareholder disputes are arbitrable on a collective basis, if sufficient procedural safeguards exist. See Bundesgerichtshof [BGH] [Federal Court of Justice] Apr. 6, 2009, II ZR 255/08 (Ger.), available at www.kluwerarbitration.com; Borris, supra note 162, at 56 (explaining how the court confirmed the arbitrability of LLC shareholder disputes and defined the requirements that arbitration agreements have to meet); Strong, dis, supra note 162, at 47 (discussing a German judicial decision concerning shareholder arbitration).

(224.) See Cremades, supra note 217, at 31 (suggesting mass procedures would be proper if the parties agreed to them); see also Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] [paragraph] 174-75, 185, 189-90 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf (suggesting mass procedures would be proper if express consent existed).

(225.) See Dimsey, supra note 11, at 230 (suggesting that class arbitration could be used in investment disputes).

(226.) See supra notes 108, 112 and accompanying text (discussing jurisdictional issues in transnational regulatory litigation).

(227.) See Craig, supra note 201 (noting arbitration is a creature of contract); Stipanowich, supra note 201, at 475 (noting intent is key in arbitration). Consent to large-scale arbitration can be obtained pre-dispute or postdispute. See Strong, Mass Torts, supra note 39 (manuscript at 41) (discussing post-dispute arbitration agreements). Consent may also be obtained on either an opt-in or opt-out basis, and may be either implicit or explicit. See Strong, De-Americanization, supra note 43, at 537-39 (describing various forms of collective redress); Strong, Sounds of Silence, supra note 151, at 1055-83 (discussing use of implicit consent in class arbitration).

(228.) See Nagareda, supra note 23, at 32-41 (discussing problems with jurisdiction in transnational regulation); Genevieve Saumier, USA-Canada Class Actions: Trading in Procedural Fairness, 5 Global Jurist Advances 1, 41-42 (2005) (discussing problems in multi-jurisdictional class actions in Canada); Strong, Mass Torts, supra note 39 (manuscript at 7) (discussing how arbitration can overcome jurisdictional problems).

(229.) See Gary Born, A New Generation of International Adjudication, 61 Duke L.J. 775, 859 (2012) (discussing how party autonomy affects procedure in arbitration).

(230.) See id (discussing extent of party autonomy in various types of arbitration).

(231.) See id at 873-75 (discussing ramifications of party autonomy).

(232.) See Nagareda, supra note 23, at 50-51 (discussing use of choice of law provisions); Strong, Mass Torts, supra note 39 (manuscript at 40) (discussing how arbitration can avoid certain problems associated with choice of law concerns).

(233.) See Glover, supra note 20, at 1211 (noting that party autonomy can lead to abuse); Nagareda, supra note 23, at 50-51 (discussing potential problems associated with party autonomy).

(234.) See Michael H. Hoffheimer, Conflicting Rules of Interpretation and Construction in Multi-jurisdictional Disputes, 63 Rutgers L. Rev. 599, 602 n.4 (2011) (discussing problems associated with choice of law when parties are of unequal bargaining position).

(235.) See Alvarez, supra note 17, at 26-27 (comparing various treaties to contracts of adhesion).

(236.) See Andrea K. Bjorklund, Mandatory Rules of Law and Investment Arbitration, 18 Am. Rev. Int'l Arb. 175, 177 (2007) (discussing mandatory law in the context of investment arbitration); Kroll, supra note 122, [paragraph][paragraph] 16-10 to 16-14, 16-18 to 16-20 (discussing use of mandatory law to protect commercial agents).

(237.) Lisa Blomgren Bingham et al., Dispute System Design and Justice in Employment Dispute Resolution: Mediation at the Workplace, 14 Harv. Negot. L. Rev. 1, 5 (2009); see also Richard A. Posner, The Summary Jury Trial and Other Methods of Alternative Dispute Resolution: Some Cautionary Observations, 53 U. Chi. L. Rev. 366, 368 (1986) (declaring that any alternative to the trial must respect relevant legal and institutional constraints).

(238.) Glover, supra note 20, at 1211.

(239.) See Mitsubishi Motors Corp. v. Soler Chrylser-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985) (defining the second look doctrine); Kroll, supra note 122, [paragraph][paragraph] 16-10 to 16-14, 16-18 to 16-20. In fact, some commentators take the view that arbitration handles issues relating to choice of law concerns better than litigation because arbitral tribunals are often able to apply the mandatory laws of a state other than that chosen by the party to govern the dispute. See id.; see also Born, supra note 188, at 796-97 (discussing the second look doctrine). These experts suggest that courts are less likely to enforce foreign forum-selection clauses because foreign courts are often perceived as less able or less inclined to apply mandatory principles of substantive law other than that of the forum court. See Kroll, supra note 122, [paragraph][paragraph] 16-57 to 16-65 (noting relative enforcement of arbitration agreements and forum selection clauses).

(240.) See Bjorklund, supra note 236, at 176 (discussing availability of second look doctrine in investment arbitration); see also infra note 271 (discussing the number of bilateral and multilateral investment treaties currently in place).

(241.) See Lew et al., supra note 68, [paragraph] [paragraph] 28-81 to 28-84 (discussing choice of law issues in international arbitration); see also McLachlan et al., supra note 10, at 66 (discussing the rules of treaty interpretation).

(242.) See Lew et al., supra note 68, [paragraph][paragraph] 28-92 to 28-97 (discussing enforcement in investment arbitration); Bjorklund, supra note 236 (noting some, but not all, investment awards will be subject to enforcement in domestic courts).

(243.) Detailed analysis of this issue is beyond the scope of this Article, though related matters are discussed elsewhere. See Bjorklund, supra note 236, at 203 (noting that choice of law provisions in international treaties involve domestic and international norms with "little direction as to how the two interact").

(244.) Limitations to the availability of large-scale arbitration can arise as a matter of contract interpretation, as would occur if express consent were said to be required in cases of class arbitration. However, the U.S. Supreme Court has not yet reached that question. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1776 n.10 (2010) ("We have no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class-action arbitration."); see also Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 (2d Cir. 2011), cert. denied, 132 S. Ct. 1742 (2012) (noting Supreme Court has not reached that question); Strong, First Principles, supra note 151, at 253 (noting Supreme Court has not addressed this issue).

(245.) AT&T upheld a contractual waiver of class procedures. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1747-53 (2011) (discussing use of waivers of class treatment). However, other courts have struck class waivers on other grounds, such as public policy or procedural unconscionability. See Coneff v. AT&T Corp., 673 F.3d 1155, 1161-62 (9th Cir. 2012) (striking waiver of class treatment); In re Am. Express Merchs. Litig., 634 F.3d 187 (2d Cir. 2011), denying reh'g en banc, 667 F.3d 204, 214, 218 (2012) (stating "[w]hat Stolt-Nielsen and Concepcion do not do is require that all class-action waivers be deemed per se enforceable" and holding that "as the class action waiver in this case precludes plaintiffs from enforcing their statutory rights, we find the arbitration provision unenforceable").

(246.) See Smit, supra note 155, at 203 (noting waivers of class treatment have only been discussed in the context of arbitration). As a general rule, remedy-stripping provisions are strongly disfavored as a matter of public policy, even if they are embedded within an arbitration agreement. See David S. Schwartz, Understanding Remedy-Stripping Arbitration Clauses: Validity, Arbitrability, and Preclusion Principles, 38 U.S.F. L. Rev. 49, 53-56 (2003) (discussing exculpatory clauses). However, other regulatory devices--such as the right to punitive damages--can be waived without regard to their effect on regulatory principles. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58 (1995) (noting arbitrators are empowered to award or withhold punitive damages, according to the contract); see also Strong, Regulatory Litigation, supra note 25 (manuscript at 31 -32) (discussing role of punitive and treble damages in regulatory litigation).

(247.) See Robert G. Bone, Party Rulemaking: Making Procedural Rules Through Party Choice, 90 Tex. L. Rev. 1329, 1331 (2012) (discussing the role of party autonomy in procedural issues); Strong, Canada, supra note 30, at 965-71 (discussing individualistic analysis of class waivers).

(248.) See Bone, supra note 247, at 1338 (discussing extent of party autonomy regarding procedure); Strong, Canada, supra note 30, at 966 (discussing the traditional right of parties to contract out of individual procedural rights).

(249.) See Strong, Canada, supra note 30, at 965-71 (distinguishing between public and private rights).

(250.) Public benefits associated with class relief can include:
   (1) the ability to set legal precedent that is important for future
   individual and class action cases; (2) the ability to promote
   public education concerning questionable business and industrial
   practices that are being challenged in representative litigation;
   (3) the ability to uncover a pattern of wrongdoing that otherwise
   would not be apparent from infrequent or widely scattered
   individual cases; and (4) the ability to promote intangible
   psychological benefits accruing to a public that would feel less
   frustrated about the unavailability of any redress when the
   vindication of group rights can be observed.


Patrick A. Luff, Bad Bargains: The Mistake of Allowing Cost-Benefit Analyses in Class Action Certification Decisions, 41 U. Mem. L. Rev. 65, 74 n.36 (2010).

(251.) See Strong, Regulatory Litigation, supra note 25 (manuscript at 46) (discussing public benefits associated with large-scale litigation).

(252.) Courts and commentators have begun to discuss relevant issues. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746 (2011) (discussing waiver of class procedures in arbitration); Dell Computer Corp. v. Union des Consommateurs, [2007] 2 S.C.R. 801, [paragraph] 160 (Can.) (discussing nature of the ability to proceed as a class); Bisaillon v. Concordia Univ., [2006] 1 S.C.R. 666, [paragraph][paragraph] 16-17 (Can.) (discussing nature of ability to proceed as a class); In re Am. Express Merchs. Litig., 667 F.3d 204, 218 (2d Cir. 2012) (noting that "[a]s the class action waiver in this case precludes plaintiffs from enforcing the statutory rights ... the arbitration provision [is] unenforceable"), reh'g denied, 681 F.3d 139 (2d Cir. 2012); Bone, supra note 247, at 1332-34 (discussing "procedural rulemaking by parties"); Nagareda, supra note 23, at 49 (discussing role of arbitration in large-scale dispute resolution); Posner, supra note 237 (noting that an "alternative to a trial must respect relevant legal and institutional constraints ... a proposed reform must move the legal system in the right direction"); Strong, Canada, supra note 30, at 965-80 (noting "both the United States and Canada, in their own ways, must consider whether class arbitration can or should play the same role as class actions in the national legal system"); Maureen A. Weston, The Death of Class Arbitration After Concepcion?, 60 U. Kan. L. Rev. 101, 129 (2012) (discussing the impact AT&T Mobility will have on class arbitration).

(253.) The assumption is that the elimination of class, mass, or collective remedies will result in the abandonment of the claims by the private individuals. See Strong, First Principles, supra note 151, at 238 (noting non-certification of a class, mass, or collective often sounds the "death knell" to such proceedings). Although conventional wisdom suggests that private parties are now routinely using arbitration agreements to obtain waivers of class and collective relief, empirical research suggests that the trend toward waiver may not be as broad as is commonly believed. See Christopher R. Drahozal, Private Regulation of Consumer Arbitration, 79 Tenn. L. Rev. 289, 347-50 (2012) (noting class waivers are widespread in some types of consumer transactions, such as those involving telecommunications, but not in others); Glover, supra note 20, at 1165-67 (discussing use of waivers before and after AT&T Mobility).

(254.) In the United States, these functions are often carried out by the Department of Justice and state attorneys general, but other enforcement agencies may also exist. See Bayer, supra note 22 (discussing public forms of regulatory litigation); Luff, supra note 21, at 113-14 (discussing various forms of regulatory litigation); Meyer, supra note 22 (discussing public forms of regulatory litigation).

(255.) See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1751 (2011) (discussing use of waivers in class arbitration); Drahozal, supra note 253, at 347-50 (suggesting the use of waivers is widespread in the telecommunications industry but not necessarily in other consumer contexts); Glover, supra note 20, at 1165-67 (discussing ramifications of limiting regulatory litigation).

(256.) See Glover, supra note 20, at 1153-55 (describing problems with limitations on public bodies); Strong, Regulatory Litigation, supra note 25 (manuscript at 49).

(257.) See Glover, supra note 20, at 1153 (discussing situations where "public governmental enforcement bodies have limited resources that are ... insufficient to perform the functions with which they are tasked").

(258.) See id. at 1154 (noting scarce public resources have long been "the rule, not the exception" in the United States); see also Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General, 54 UCLA L. Rev. 1087, 1132-34 (2007) (discussing the role of public interest organizations in litigation and the consequences of reductions in private enforcement actions); Eloise Pasachoff, Special Education, Poverty, and the Limits of Private Enforcement, 86 Notre Dame L. Rev. 1413, 1415-16 (2011) (discussing the importance of private enforcement in special education and disabilities law); Heidi Mandanis Schooner, Private Enforcement of Systemic Risk Regulation, 43 Creighton L. Rev. 993, 1000-04 (2010) (discussing challenges faced by agencies charged with public enforcement duties).

(259.) See Bignami, supra note 23 (noting European institutions are increasingly "overtaxed and underresourced").

(260.) See Burch, supra note 24, at 70-77, 128 (discussing differences between ex ante and ex post regulation); Luff, supra note 21, at 113-14 (discussing how regulatory litigation acts as ex post regulation).

(261.) See Burch, supra note 24, at 70-77, 128 (discussing how elimination of class actions could lead to new types of regulation ex post); Strong, Canada, supra note 30, at 980 (discussing consequences of elimination of class relief).

(262.) See Richard A. Nagareda, Outrageous Fortune and the Criminalization of Mass Torts, 96 Mich. L. Rev. 1121, 1197-98 (1998) (noting one way to address product liability concerns would be to criminalize illegal behavior); Frank J. Vandall, The Criminalization of Products Liability: An Invitation to Political Abuse, Preemption, and Non-Enforcement, 57 Cath. U. L. Rev. 341, 342 (2008) (discussing a proposal to criminalize some product liability torts); Byron G. Stier, PIP Breast Implants and Mass Torts in Europe, Mass Tort Litig. Blog (Jan. 30, 2012), http://lawprofessors.typepad.com/mass_tort_litigation/2012/01/pip-breast-implants-andmass -torts-in-europe.html (describing the traditional European approach as "more reliant on criminal law than tort for deterrence, compensatory damages are limited because of the comparatively extensive governmental social insurance, punitive damages are unavailable, and class actions are traditionally not embraced").

(263.) This approach is common not only in Europe, but also in New Zealand. See Burch, supra note 24, at 70-77, 128 (noting elimination of regulatory litigation requires a replacement mechanism); Jules L. Coleman, Mistakes, Misunderstandings, and Misalignments, 121 Yale L.J. Online 541, 564 (2012), available at http://yalelawjournal.org/the-yale-law-journal-pocket-part/tort-law/mistakes,-misunderstandings,-andmisalignments/ (discussing New Zealand's approach to tort law); Stier, supra note 262 (discussing European approach to various types of wrongdoing).

(264.) See Greenberg, supra note 75, at 585-86 (discussing legislative and judicial give-and-take regarding class relief); Strong, Regulatory Litigation, supra note 25 (manuscript at 39) (discussing legislative overrides when the political branches "believe courts have overstepped" their bounds); Ventoruzzo, supra note 108, at 439 (discussing legislative responses to judicial decisions).

(265.) See Greenberg, supra note 75, at 585-86 (discussing legislative and judicial give-and-take concerning class relief); Strong, Regulatory Litigation, supra note 25 (manuscript at 39) (discussing how elected branches of government can override courts even on procedural matters); Ventoruzzo, supra note 108, at 439 (discussing legislative reversal of various Supreme Court decisions).

(266.) While some commentators believe that it is more likely that legislatures will act to limit the breadth of class or collective relief, there have been situations where legislative actors have stepped in to correct situations where the courts have improperly restricted the availability or use of regulatory litigation. See Greenberg, supra note 75, at 585-86 (citing employment discrimination cases); Strong, Regulatory Litigation, supra note 25 (manuscript at 36) (discussing situations where the legislature has re-established broad relief in the courts following judicial curtailment).

(267.) See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (discussing waiver of class relief in arbitration); see also Arbitration Fairness Act of 2011, S. 987, 112th Cong. (2011) (seeking to prevent the use of pre-dispute arbitration clauses in certain contexts); Arbitration Fairness Act of 2011, H.R. 1873, 112th Cong. (2011) (seeking to prevent the use of predispute arbitration clauses in certain contracts).

(268.) See Burch, supra note 24, at 70-77, 128 (noting elimination of class relief may lead to increased regulation through other means); Strong, Canada, supra note 30, at 980 (discussing the potential ramifications of a widespread limitation on class relief).

(269.) See Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93, 106-21 (2005) (discussing advantages and consequences of private enforcement suits).

(270.) See generally Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (Aug. 4, 2011), available at http://italaw.com/sites/default/files/casedocuments/ita0236.pdf (providing the basis for a regulatory arbitration evaluation). For a summary of the development of international investment law and arbitration, see generally Stephan W. Schill, W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law, 22 Eur. J. Int'l L. 875 (2011) (discussing trends and development of the literature in international investment law).

(271.) Most commentators put the number of bilateral and multilateral agreements between 2600 and 3000. See Alvarez, supra note 17, at 17 (estimating numbers of investment treaties); Born, supra note 229, at 844 (discussing scope of investment treaties); see also McLachlan et al., supra note 10, at 5 (describing the field of international investment arbitration as a "patchwork quilt of interlocking but separate bilateral treaties"); Jan Paulsson, Arbitration Without Privity, 10 ICSID Rev. Foreign Investment L.J. 232, 236 (1995) (putting the number of investment treaties at 5000). In addition to bilateral investment treaties (BITs), investment arbitration involves multilateral investment treaties (MITs), investment protection agreements (IPAs), foreign investment laws, and free trade agreements (FTAs). See McLachlan et al., supra note 10, at 25-43 (discussing various instruments prevalent in investment realm). See generally Lucy Reed et al., Guide to ICSID Arbitration (2010) (detailing the investment regime); Christoph H. Schreuer, The ICSID Convention: A Commentary (2001) (outlining the international investment regime).

(272.) McLachlan et al., supra note 10, at 5, 18; see also Alvarez, supra note 17, at 41-45 (discussing similarities of investment treaties); Efraim Chalamish, The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement?, 34 Brook. J. Int'l L. 303, 321 (2009) (discussing similarities of investment treaties).

(273.) M. SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN INVESTMENT 206 (2d ed. 2004); see also Rafael Leal-Arcas, The Multilateralization of International Investment Law, 35 N.C. J. Int'l L. & Com. Reg. 33, 124 (2009) (describing differences in investment treaties).

(274.) Compare Chalamish, supra note 272 (suggesting most BITs reflect "an international consensus on dispute settlement norms, ... and attempt[] to create an international jurisprudence for international investment law, notwithstanding that such jurisprudence is developed by numerous ad hoc international tribunals. This analysis reinforces the view that the substance of the treaties, along with their lack of differentiation and competitiveness, strengthens BITs' role as an investment regulatory regime on a multilateral, not just a bilateral, level" (citation omitted)), with Leon E. Trakman, Foreign Direct Investment: Hazard or Opportunity?, 41 Geo. Wash. Int'l L. Rev. 1, 22 (2009) (noting various differences between BITs and free trade agreements (FTAs), both with respect to substance and dispute resolution).

(275.) Commentators who see a high degree of substantive or procedural similarity between the various investment treaties may perceive few problems in constructing multinational classes or collectives in investment arbitration. See Dimsey, supra note 11, at 207 (noting similarities in investment treaties could support multinational classes in large-scale investment arbitration). The principle is the same as in private arbitration, in that multiparty procedures may be considered appropriate if the underlying arbitration agreements are sufficiently similar as a procedural matter and implicit consent to such treatment exists. See Strong, First Principles, supra note 151, at 251-54 (discussing consent in class arbitration); Strong, Sounds of Silence, supra note 151, at 1062-63 (discussing method of identifying implicit consent in class arbitration). While Abaclat did not address this issue, since all members of the claimant group were of the same nationality, these sorts of concerns may be important in future cases involving mass investment arbitration. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 513 (suggesting "claims are proper and manageable" in part because "[c]laimants are from a single jurisdiction").

(276.) Van Harten & Loughlin, supra note 15, at 148.

(277.) Id.

(278.) Mills, supra note 15, at 501 (citations omitted).

(279.) Van Harten & Loughlin, supra note 15, at 148-49.

(280.) Schreuer, supra note 271, at xii (citing research conducted by Brigitte Stern in 2000). This use of private actors to enforce public laws is entirely consistent with the definition of regulatory litigation. See Luff, supra note 21, at 113 (describing regulatory litigation); see also supra notes 20-21 and accompanying text (explaining how the use of private actors is consistent with achieving regulatory objectives).

(281.) Mills, supra note 15, at 502.

(282.) See id (discussing support for narrower interpretation of investment obligations); Michele Potesta, Republic of Italy v. Republic of Cuba Interim Award, 106 Am. J. Int'l L. 341, 347 (2012) (discussing BITs).

(283.) For further reading, see Mills, supra note 15, at 469.

(284.) Id. at 503; see also Strong, Abaclat, supra note 8 (discussing rationales supporting mass claims in investment arbitration).

(285.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 537 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/casedocuments/ita0236.pdf (reflecting liberal internationalist tendencies); Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 272 (Oct. 28, 2011) (AbiSaab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf (reflecting sovereignist tendencies).

(286.) See generally Abaclat, ICSID Case No. ARB/07/5.

(287.) See Luff, supra note 21, at 113-14 (explaining three-prong test for regulatory litigation); see also supra notes 82-84 and accompanying text (discussing regulatory litigation as a risk regulator).

(288.) Luff, supra note 21, at 113.

(289.) Abaclat, ICSID Case No. ARB/07/5, 1 513.

(290.) See id 11 227, 523-27 (explaining that the tribunal's decision does not have precedential value).

(291.) Interestingly, the policy arguments appear to have been raised primarily by Argentina rather than the claimants. The tribunal responded to these arguments by stating that
   [p]olicy reasons are for States to take into account when
   negotiating BITs and consenting to ICSID jurisdiction in general,
   not for the Tribunal to take into account in order to repair an
   inappropriately negotiated or drafted BIT. The present BIT is
   clear, it includes bonds and security entitlements.... Whether or
   not ICSID is the best way to deal with a dispute relating to these
   bonds and security entitlements in the context of foreign debt
   restructuring is irrelevant. The Parties chose ICSID arbitration
   for this kind of dispute. They, as well as the Tribunal, are bound
   by such choice and cannot evade it based on controversial policy
   reasons.


Id. [paragraph] 550. The dissent took the view that the majority had relied on improper policy considerations. See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 265 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/ case-documents/ita0237.pdf (claiming that the majority relied on policy issues).

(292.) See generally Abaclat, ICSID Case No. ARB/07/5 (discussing the propriety of mass proceedings).

(293.) See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1769 (2010) (noting "[t]he conclusion is inescapable that the panel simply imposed its own conception of sound policy"). But see id. at 1780 (Ginsburg, J., dissenting) (describing the majority's characterization as "hardly fair"); Strong, First Principles, supra note 151, at 239 (discussing Supreme Court's allegation).

(294.) See supra note 217 and accompanying text (discussing the law applicable in investment arbitration). The tribunal was nevertheless aware of developments in the United States. Indeed, the dissent explicitly discussed two U.S. Supreme Court cases--Stolt-Nielsen and AT&T Mobility--in its decision. See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 148-53 (Abi-Saab, dissenting) (discussing the Supreme Court's decisions in Stolt-Nielsen and AT&T Mobility); see also AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) (discussing use of waivers in class arbitration); Stolt-Nielsen, 130 S. Ct. at 1758 (discussing contractual silence and ambiguity regarding class treatment in arbitration).

(295.) See Luff, supra note 21, at 113 (describing necessary intent in regulatory litigation).

(296.) See id (discussing intent in regulatory litigation).

(297.) Id. at 114.

(298.) See Mills, supra note 15 (discussing investment law's regulatory potential); Van Harten & Loughlin, supra note 15, at 148 (discussing how investment law can be considered to be a strand of administrative law). Respondents in private arbitration would likely not be seen as having a regulatory intent, since they have been put in a defensive posture. However, respondents in treaty-based arbitration often come to the arbitral process as a result of certain bilateral or multilateral agreements, and it could be said that the state parties have consented to mutually regulate each other's behavior through investment arbitration. Therefore, it is appropriate to at least consider the possibility that a state respondent in treaty arbitration could have a regulatory intent.

(299.) While critics could argue that this approach is reminiscent of the argument criticized by the U.S. Supreme Court in Stolt-Nielsen (i.e., that an agreement to arbitration, without more, cannot constitute an agreement to class proceedings), the situation is slightly different. See Stolt-Nielsen, 130 S. Ct. at 1775 (discussing contractual silence or ambiguity in context of class arbitration). Here, the hypothesis is that a preexisting general intent to allow investment arbitration to act as an international regulatory agent can provide the necessary specific intent to allow additional mechanisms meant to make the pre-established regulatory regime more effective.

(300.) See Mills, supra note 15 (noting irreconcilability of liberal internationalists and sovereigntist views); see also Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 537 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/casedocuments/ita0236.pdf (reflecting liberal internationalist perspective); Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 272 (Oct. 28, 2011) (AbiSaab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf (reflecting sovereigntist perspective).

(301.) Any analysis of claimants' intent cannot be conducted in the abstract, since the inquiry must focus on the precise submissions and facts at issue in any particular dispute. Analysis of the regulatory intent of state respondents is somewhat different, since the relevant instruments (treaties and other international agreements) exhibiting state consent to arbitration exist prior to the filings in the particular dispute at issue.

(302.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 514. The dissent urged against an expansive reading of the ability of international investment arbitration to reach claims of this nature. See Abaclat, ICSID Case No. ARB/07/5, 11 157, 258, 265-74 (Abi-Saab, dissenting) (supporting a narrower interpretation of the relevant treaties).

(303.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 265 (Abi-Saab, dissenting).

(304.) See supra notes 85-86 and accompanying text (discussing regulatory intent).

(305.) See Luff, supra note 21, at 113-14 (discussing issues relating to institutional design). In this context, the investment regime can be considered a stand-alone legal system.

(306.) Id. at 96.

(307.) See Lew et al., supra note 68, [paragraph] [paragraph] 28-11, 28-21 (discussing privity in investment arbitration); Paulsson, supra note 271, at 256 (describing the principle of direct action, which results in arbitration without privity).

(308.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 16, 164-67 (Abi-Saab, dissenting) (discussing the intent to arbitrate demonstrated by the states parties).

(309.) Paulsson, supra note 271, at 255-56; see also Born, supra note 229, at 833 (disputing the characterization of investment arbitration as being without privity).

(310.) See Born, supra note 229, at 838 (noting that "investment arbitration regimes are effectively mandatory for many states"); Schill, Legitimacy, supra note 15, at 77 (discussing privity in investment arbitration).

(311.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 16, 164-67 (Abi-Saab, dissenting) (discussing foreseeability of collective actions at the time of drafting).

(312.) Alvarez, supra note 17, at 44; see also Strik, supra note 3, at 189-90 (discussing the consequences of not considering sovereign debt instruments to constitute an "investment").

(313.) See Luff, supra note 21, at 74 (discussing regulatory litigation as a risk regulator). Not everyone views the investment regime as reflecting a high degree of flexibility. See Trakman, supra note 274, at 3 (noting dangers of excessive flexibility and rigidity).

(314.) Of course, discussions about the appropriate amount of flexibility in the investment realm are in ways reminiscent of the debate about liberal internationalism and sovereigntism. See supra notes 276-82 and accompanying text.

(315.) See Luff, supra note 21, at 113-14 (discussing scope of regulatory effect); see also supra notes 86-87 and accompanying text (discussing regulatory effect).

(316.) See Michael P. Vandenbergh, Beyond Elegance: A Testable Typology of Social Norms in Corporate Environmental Compliance, 22 Stan. Envtl. L.J. 55, 132 (2003) (suggesting in some cases, negative publicity is a more effective deterrent than monetary sanctions). If the regulatory effect focuses only on the respondent in the proceeding in question, then publicity is irrelevant.

(317.) See Born, supra note 188, at 1765 (discussing privacy and confidentiality in arbitration); Gaillard & Savage, supra note 68, [paragraph] 7 (discussing privacy and confidentiality in arbitration).

(318.) Although privacy and confidentiality are hallmarks of arbitration, neither is required for the process to be considered arbitration per se. Indeed, most national and international laws do not provide for privacy or confidentiality in arbitration. See Born, supra note 188, at 1765 (discussing absence of any laws regarding privacy or confidentiality in arbitration); Gaillard & Savage, supra note 68, [paragraph] 7 (noting absence of national provisions regarding privacy or confidentiality in arbitration); Strong, First Principles, supra note 151, at 206 (noting arbitration does not require privacy or confidentiality). Instead, parties must specifically adopt provisions regarding privacy and confidentiality, either in their arbitration agreement or through the use of arbitral rules with the desired level of protection. See Born, supra note 188, at 2249-50, 2253 (suggesting parties draft agreements to provide the desired level of privacy and confidentiality).

(319.) See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1749 (2011) (suggesting limits on privacy and confidentiality in class arbitration); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1776 (2010) (considering the parties' expectations of privacy and confidentiality in arbitration).

(320.) See Strong, Sounds of Silence, supra note 151, at 1086-89 (discussing how public policy might affect determinations about privacy and confidentiality in arbitration).

(321.) See Class Arbitration Case Docket, supra note 147 (publishing awards); AAA Supplementary Rules, supra note 154, R. 9(1) (describing derogation of the principles of privacy and confidentiality). Some class arbitration rules do not provide for publication of awards, which could limit or eliminate any regulatory effect involving third parties. See JAMS Class Action Procedures, supra note 154 (failing to indicate any means of publishing class awards).

(322.) See McLachlan et al., supra note 10, at 57 (noting that "it is routine for the basic details of the arbitration to be in the public domain" and that "parties are usually encouraged to allow the award to be published"); see also Dimsey, supra note 11, at 223-24 (discussing publication of awards in investment realm).

(323.) See Van Harten & Loughlin, supra note 15, at 148-49 (discussing investment law as a type of global administrative law).

(324.) See Stephan W. Schill, System-Building in Investment Treaty Arbitration and Lawmaking, 12 German L.J. 1083, 1101-03 (2011) (stating "that arbitral decisions increasingly craft treaty-overarching rules of international investment law and thereby function as a mechanism of global governance").

(325.) See Luff, supra note 21, at 113 (noting that "some authors have suggested that all litigation is regulatory").

(326.) Id. at 113-14.

(327.) See infra notes 331 -412 and accompanying text (discussing how this forward-looking objective is achieved in regulatory arbitration).

(328.) See McLachlan et al., supra note 10, at 66 (noting "[t]he substantive law applied in a treaty arbitration is the treaty itself"). Investment arbitration is notable in the realm of public international law for its application of "comparatively specific legal rules, rather than indeterminate standards." Born, supra note 229, at 872 n.388.

(329.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 251-98 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/casedocuments/ita0236.pdf (identifying various substantive claims at issue).

(330.) See id. (noting areas of substantive dispute); see also ICSID Convention, supra note 4 (describing substantive standards by which investment disputes are resolved); Argentina-Italy BIT, supra note 4 (allowing user to search for BITs by country).

(331.) Luff, supra note 21, at 113-14.

(332.) See Cross, supra note 12, at 1 (noting that Abaclat was "unprecedented").

(333.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 154-75 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/ sites/default/files/case-documents/ita0237.pdf (noting the silence of the relevant treaties concerning mass procedures). In this case, the Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings (Institution Rules) and Rules for Procedure for Arbitration Proceedings (ICSID Arbitration Rules) governed the procedure. See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 221, 426 (explaining the procedural framework in which the tribunal had to operate).

(334.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 295, 488 (noting the novelty of this type of mass claim); Cross, supra note 12, at 1 (noting novelty of Abaclat).

(335.) Dimsey, supra note 11, at 204.

(336.) Id. at 210; see also Abaclat, ICSID Case No. ARB/07/5, [paragraph] 513 (stating "[c]ollective proceedings are ... consistent with the purpose and object of the BIT, since the high number of Claimants is inherent to the nature of the investments protected by the BIT").

(337.) Dimsey, supra note 11, at 210. The downside to the standing offer mechanism is that multiple claims can be brought "without having any regard to the similarity of claims amongst them, nor to any notions of binding effect with respect to completed awards." Id.; see also infra notes 376-81 and accompanying text (discussing the effects of inconsistent awards).

(338.) Of course, the possibility of Argentina having to face 60,000 individual arbitrations is relatively low, since it would be highly unlikely for individual bondholders to bring separate claims, given the cost of ICSID proceedings. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 537 (explaining cost prohibitive nature of individual filings for small disputes); Penusliski, supra note 66, at 524-26 (outlining the average cost of an ICSID arbitration); see also Strong, First Principles, supra note 151, at 238 (noting non-certification of a class, mass, or collective often sounds the "death knell" to such proceedings).

(339.) See McLachlan et al., supra note 10, at 52-54 (concluding the concept of investment arbitration as constituting an offer to arbitrate "is no longer controversial"); see also Schreuer, supra note 271, at xii (noting longstanding acceptance of the offer to arbitrate principle); Paulsson, supra note 271, at 240-41 (discussing the concept of an offer to arbitrate).

(340.) The question "with whom am I required to arbitrate?" was said to be central in the U.S. Supreme Court case of Stolt-Nielsen. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1774 (2010) (framing the issue as one of consent); Strong, First Principles, supra note 151, at 252 (discussing the concept of secondary consent).

(341.) Argentina noted that "[a]t the time of the conclusion of ICSID Convention and BIT, collective claims were allowed neither in Italy nor in Argentina, and could therefore not have been envisaged by Argentina." Abaclat, ICSID Case No. ARB/07/5, [paragraph] 471(ii).

(342.) See id. [paragraph][paragraph] 237, 540 (discussing homogeneity of claims at issue); see also Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 154-75 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf (discussing how class arbitration involves what is at essence a single claim).

(343.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 666-69 (contemplating the possibility of subclasses). For example, the respondent in Abaclat wanted to assert certain defenses that would only be availing against legal persons, not natural persons. See id. [paragraph][paragraph] 1 -4, 401 -02 (discussing differentiation of various defenses).

(344.) Id. [paragraph] 490.

(345.) See supra notes 164-82 and accompanying text (analyzing the need to alter procedures to address mass claims).

(346.) See Abaclat, ICSID Case No. ARB/07/5, 1 194 (Abi-Saab, dissenting) (noting that the tribunal does not have the authority to adopt its own rules of procedure).

(347.) See supra notes 164-82 and accompanying text (explaining the procedural decisions that have been made to date).

(348.) These arguments have been raised in class arbitration in the United States. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775 (2010) (claiming class arbitration "changes the nature" of arbitration); see also AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1751 (2011) (suggesting class arbitration is in some way different than other forms of arbitration); Strong, First Principles, supra note 151, at 201 -71 (discussing whether and to what extent class arbitration can be said to differ from other forms of arbitration).

(349.) See Abaclat, ICSID Case No. ARB/07/5, 1 171-72 (Abi-Saab, dissenting) (characterizing mass procedures as a "quantum leap" from other types of arbitration).

(350.) See Strong, First Principles, supra note 151, at 226 (explaining parties are bound by the objective intent reflected in the contract); see also Strik, supra note 3, at 189-90 (discussing how the requirement of an "investment" cannot be diluted by the will of the parties).

(351.) AT&T Mobility LLC, 131 S. Ct. at 1751 (discussing size and complexity of class arbitration); Stolt-Nielsen S.A., 130 S. Ct. at 1775 (discussing size and complexity of class arbitration); Strong, First Principles, supra note 151, at 212-41 (considering ways in which class arbitration might differ from other forms of arbitration).

(352.) See AT&T Mobility, 131 S. Ct. at 1751; Stolt-Nielsen, 130 S. Ct. at 1775-76; Schill, Legitimacy, supra note 15, at 72-73.

(353.) See Strong, First Principles, supra note 151, at 212-13 (discussing size of class arbitrations).

(354.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 488 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/casedocuments/ita0236.pdf; Strong, De-Americanization, supra note 43, at 529.

(355.) See AT&T Mobility, 131 S. Ct. at 1751 (assuming arbitration is bilateral in nature); Stolt-Nielsen, 130 S. Ct. at 1775 (assuming arbitration is bilateral in nature); Strong, De-Americanization, supra note 43, at 529 (stating "arbitration is traditionally viewed as a bilateral process"); Strong, First Principles, supra note 151, at 203-04 (noting assumption of bilateralism).

(356.) See Anderson v. Republic of Costa Rica, ICSID Case No. ARB(AF)/07/3, Award, [paragraph] 3 (May 10, 2011), available at http://italaw.com/documents/AndersonvCostaRicaAward19May2010.pdf (resolving dispute between Canadian investors and the Republic of Costa Rica); Funnekotter v. Republic of Zimbabwe, ICSID Case No. ARB/05/6, Award, [paragraph] 90 (Apr. 7, 2009), available at http://italaw.com/documents/Zimbabwe Award.pdf (ordering the government of Zimbabwe to compensate Dutch investors).

(357.) See Alvarez, supra note 17, at 44 (noting state parties are able to react and respond to events relating to investment treaties); Strik, supra note 3, at 190-91 ("There are many examples of investors that only discovered the existence of BITs long after they had made their investment and after they had encountered unlawful actions of the host states for which BITs offered protection."); Strong, De-Americanization, supra note 43, at 529 (regarding lack of surprise).

(358.) See Dimsey, supra note 11, at 211 (noting that changing treaties can be quite difficult).

(359.) See Born, supra note 229, at 844 (noting states may change treaties to account for changes in circumstance); Alvarez, supra note 17, at 44 (discussing flexibility of treaties); Strik, supra note 3, at 189-90 (explaining how contracting states can agree to deviate from general treaty principles). Of course, the failure to do so could be read as reflecting state consent to such proceedings. See supra notes 264-66 and accompanying text (discussing give-and-take between legislative and judicial branches in regulatory litigation).

(360.) Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 530-31 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/casedocuments/ita0236.pdf. For example, various tribunals at the PCA have adopted sampling, statistical modeling, and similar types of sophisticated evidentiary techniques in mass claims processes. See Crook, supra note 143, at 48 (explaining that the United Nations Compensation Commission drew on "lessons learned from U.S. mass tort litigation" to employ such techniques).

(361.) For example, the Abaclat majority noted the possible use of scanned documents as opposed to originals, a practice that has long been used in complex commercial arbitration and litigation. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 531; Strong, Mass Torts, supra note 39. It is also common for parties in complex bilateral proceedings to stipulate to the introduction of a single representative document in situations involving multiple identical (or functionally identical) copies. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 531 (noting possible use of limits on evidentiary material).

(362.) The issue of proper comparators was raised in the context of U.S. class arbitrations, when the majority in AT&T decided to compare the length of class arbitration to the length of bilateral arbitration. See AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1751 (2011). The dissent argued that the comparison should more properly be made between class arbitration and class actions. See id. at 1750 (Breyer, J., dissenting).

(363.) See Luff, supra note 21, at 75-76 (discussing how regulatory litigation arose as a necessary means of addressing "latent social risks").

(364.) See id. at 113; see also supra notes 81-83 and accompanying text (explaining the three-pronged test of regulatory litigation as a risk regulator).

(365.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 35 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/ default/files/case-documents/ita0237.pdf (identifying the sovereign debt issue).

(366.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 514.

(367.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 265 (Abi-Saab, dissenting).

(368.) See id (discussing procedural approach adopted by the claimants and majority).

(369.) See supra notes 82-84 and accompanying text (discussing three-pronged test for regulatory litigation).

(370.) Here, the argument--though disputed--is that treaty law should be used "to provide a global regulatory environment favourable to investors." Mills, supra note 15, at 501.

(371.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 484 (discussing the need for various forms of collective redress); Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980) (discussing need in the context of U.S. class actions); Strong, De-Americanization, supra note 43, at 502 (discussing need as the driving force for new forms of class or collective arbitration); Strong, Regulatory Litigation, supra note 25 (manuscript at 1) (discussing need for regulatory litigation in the European Union).

(372.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 484 (discussing need as the underlying factor for the development of collective proceedings); Deposit Guar. Nat'l Bank, 445 U.S. at 339 (discussing need in the context of U.S. class actions); Strong, De-Americanization, supra note 43, at 502 (discussing need as the driving force for the development of new forms of class or collective arbitration); Strong, Regulatory Litigation, supra note 25 (manuscript at 46) (discussing need as a function of an effective remedy).

(373.) See Strong, Regulatory Litigation, supra note 25 (manuscript at 45-46) (discussing the flexibility of regulatory litigation); see also supra notes 312-13 and accompanying text (discussing flexibility in treaty interpretation).

(374.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 519.

(375.) See DlMSEY, supra note 11, at 211 (noting that because the ICSID Convention is based "in public international law, changes can only be implemented with great difficulty").

(376.) See Mills, supra note 15, at 502 (discussing differing views regarding the flexibility of the investment regime); Potesta, supra note 282 (discussing flexibility in investment law); Trakman, supra note 274, at 3 (discussing need for predictability in investment law).

(377.) In regulatory litigation, political actors can overrule a judicial decision that unduly restricts or expands certain remedies. See supra notes 265-66 and accompanying text (discussing how the legislature and judiciary mutually monitor each other's actions). In regulatory arbitration in the investment context, states can either withdraw from or refuse to enter the system if they disagree with the direction in which investment law is headed, procedurally or substantively. See Born, supra note 229, at 844 (discussing how only a few states have renounced the system); Luke Eric Peterson, In Policy Switch, Australia Disavows Need for Investor-State Arbitration Provisions in Trade and Investment Agreements, INVESTMENT ARB. REP. (Apr. 14, 2012), http://www.iareporter.com/articles/20110414 (noting Australia has declined to enter into investment arbitration regime); Sergey Ripinsky, Venezuela's Withdrawal from ICSID: What it Does and Does Not Achieve, Investment Treaty News (Apr. 13, 2012), www.iisd.org/itn/2012/04/13/venezuelas-withdrawal-from-icsidwhat-it-does-and-does-not-achieve/ (noting Venezuela, Bolivia, and Ecuador have withdrawn from the ICSID Convention). Notably, the Abaclat dissent suggests "[t]he risk of back-lash is already pointing its head" as a result of Abaclat and other similarly broad decisions. Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 274 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf.

(378.) Ironically, Argentina has complained in the past "that multiple arbitral claims by a multiplicity of indirect shareholders in a single company have the potential to sow legal confusion--particularly where the minority shareholders pursue a litigation strategy that has been disavowed by the majority shareholders of a given company." Luke Eric Peterson, Majority Opinion in ICSID Bondholders Claim Has Broader Lessons for Defaulting Sovereigns, Fractured Tribunals, Shareholder Groupings, and Would-Be Claimants Needing Help Getting ICSID Claims Registered, Investment ARB. Rep. (Aug. 19, 2011), www.iareporter.com/articles /20110819 2.

(379.) Dimsey, supra note 11, at 204 (citation omitted).

(380.) Id. at 205. In CME and Lauder, the Czech Republic's refusal to consolidate two different arbitrations led to two contradictory awards. See id. at 206 (citing CME Czech Republic B.V. (The Netherlands) v. Czech Republic (UNCITRAL) and Ronald S. Lauder v. the Czech Republic (UNCITRAL)) (discussing contradicting awards in CME and Lauder).

(381.) Id. at 185.

(382.) See Fed. R. Civ. P. 23(b)(1) (noting efficiency rationale behind class actions).

(383.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case-documents /ita0236.pdf (allowing large-scale litigation techniques to be used in an investment arbitration). Issues relating to inconsistent awards in investment arbitration are beyond the scope of this Article, though further reading is available. See generally Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, 73 Fordham L. Rev. 1521 (2005) (discussing issues relating to inconsistent arbitral rewards).

(384.) In Abaclat, the key question was whether the silence in the treaties and procedural rules constituted a procedural gap or a "qualified silence" that could be filled by the arbitrators. Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 297, 517 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf. Issues relating to the interpretation of statutory or contractual silence can be extremely difficult. See Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (stating that the treaty shall be interpreted in good faith in accordance with its object and purpose); McLachlan et al., supra note 10, at 66; see also Strong, Sounds of Silence, supra note 151, at 1055-83 (discussing interpretation of silence or ambiguity regarding class treatment in the context of international commercial arbitration).

(385.) Luff, supra note 21, at 114. Some question exists as to whether class relief constitutes the relevant rule or remedy, or whether the class procedure simply facilitates the provision of a more traditional type of remedy (i.e., damages, injunctive relief, or declaratory judgment). See Strong, Regulatory Litigation, supra note 25 (manuscript at 42-50) (describing how the combination of traditional remedies with large-scale litigation techniques can help meet the requirements for bottom-up regulatory litigation); see also supra note 72. For ease of discussion, this Article frames the argument as if class, mass, or collective relief constitutes the relevant rule or remedy.

(386.) See Fed. R. Civ. P. 23 (providing a trans-substantive rule of procedure allowing class relief). Individual U.S. states have their own rules of procedure governing class suits. Other jurisdictions, including Australia and most Canadian provinces and territories, place the class action remedy in legislation rather than rules of procedure. See Mulheron, supra note 7, at 38-42, 63-66 (discussing class action legislation).

(387.) Claimants in Abaclat cited the common law development of class arbitrations in the United States to support their argument that the tribunal in Abaclat could follow a similar path. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 146 (Abi-Saab, dissenting) (discussing development of class arbitration in the United States).

(388.) See AAA Supplementary Rules, supra note 154, R. 1(a) (noting the adoption of any of the AAA rules of arbitration can lead to the use of the class arbitration rules in cases where a class claim has been made, but indicating that class procedures will not be deemed appropriate until the arbitral tribunal has so decided after briefing from the parties); JAMS Class Action Procedures, supra note 154, R. 1(b) (stating that class action procedures apply to any dispute arising out of an agreement that provides for arbitration pursuant to any of the JAMS rules where a party submits a dispute to arbitration on behalf of or against a class or purported class).

(389.) See Keating v. Superior Court, 645 P.2d 1192, 1209 (Cal. 1982) (indicating class arbitration was a proper dispute resolution mechanism), rev'd on other grounds sub nom., Southland Corp. v. Keating, 465 U.S. 1 (1984); Strong, First Principles, supra note 151, at 206 (discussing evolution of class arbitration in the United

States).

(390.) See Keating, 645 P.2d at 1209 (holding class arbitration is a legitimate means of resolving disputes); Born & Salas, supra note 150, at 25-30 (exploring the history of class arbitration in the United States prior to 2003).

(391.) Keating, 645 P.2d at 1209.

!!

(392.) See Fed. R. Civ. P. 23 (providing for class relief). Although the mechanism authorizing class actions is found in the rules of civil procedure, those rules are approved by Congress. See Rules Enabling Act, 28 U.S.C. [section][section] 2071-72, 2074 (2006) (requiring congressional approval of rules of court, including the Federal Rules of Civil Procedure).

(393.) Although this argument will likely be raised, it is somewhat incorrect as a factual matter, given that corporate respondents believed that the use of arbitration agreements would eliminate the class remedy in both litigation and arbitration and were therefore surprised by the development of class arbitration. See Strong, First Principles, supra note 151, at 226 (explaining how many corporate respondents created arbitration agreements to avoid the possibility of judicial class actions).

(394.) Notably, this argument ignores the fact that non-common law jurisdictions such as Colombia, Germany, and Spain have contemplated the development of class or collective arbitration. See supra notes 151, 161-65 and accompanying text (discussing development of large-scale arbitration outside the United States). In two of those three examples--Colombia and Germany--the impetus came from the judiciary as opposed to the legislature. See Bundesgerichtshof [BGH] [Federal Court of Justice] Apr. 6, 2009, II ZR 255/08 (Ger.); Kuck & Litt, supra note 9, at 720-23 (discussing the single instance of class arbitration in Colombia); Borris, supra note 162; Strong, dis, supra note 162, at 47.

(395.) While a growing number of legal systems allow for some form of collective redress, there is no consensus as to the appropriate shape of those proceedings or whether those mechanisms serve a regulatory end. See supra note 57 (describing various forms of collective redress internationally).

(396.) See DlMSEY, supra note 11, at 205 (discussing jurisdictions that use large-scale litigation as a regulatory device).

(397.) Two of these responses arise as a factual matter. See supra note 57 (describing various forms of collective redress internationally).

(398.) Although Abaclat only involved two countries, it is theoretically possible for mass investment arbitrations to include parties from more than two nations. See Dimsey, supra note 11, at 212 (noting similarities of bilateral investment treaties may lead to multinational claimant groups in investment arbitration); see also Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 1 513 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/casedocuments/ita0236.pdf (suggesting "claims are proper and manageable" in part because "[c]laimants are from a single jurisdiction"); supra note 275 (discussing viability of multinational claimant groups in investment arbitration).

(399.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 484, 587 (noting Argentina did not provide for collective redress in its national courts); see also Hector A. Mairal, Argentina, in The Annals, supra note 26, at 54, 5462 (discussing the current status of group, class, or collective rights in Argentina). Italy does not provide for "any form of group litigation as a general procedural tool for the protection and the enforcement of rights and interests shared by a group of individuals equally affected by the same mass wrong or harm," although some select rights of collective action exist. Elisabetta Silvestri, Italy, in The Annals, supra note 26, at 138 (discussing availability of large-scale judicial relief in Italy). Notably, the lack of a collective remedy at national law was one reason why the claimants found it necessary to file a mass claim under the relevant investment treaty. See Abaclat, ICSID Case. No. ARB/07/5, [paragraph][paragraph] 484, 587 (noting no collective remedy existed in Argentina's national courts).

(400.) See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph] 33 (Oct. 28, 2011) (Abi-Saab, dissenting), available at http://italaw.com/sites/default/files/case-documents/ita0237.pdf (stating the claimants should have pursued actions in Argentinean courts on a bilateral basis).

(401.) See McLachlan et al., supra note 10, at 227-33 (discussing breaches leading to a denial ofjustice in the national courts); see also Nagareda, supra note 23, at 36 (suggesting "a class action might well be all the more 'superior' to available procedural alternatives when the home country of a given shareholder affords her no avenue for recourse on an aggregate basis").

(402.) The right to an effective remedy is gaining increasing importance as a matter of national, international, and regional law. See European Convention on Human Rights, as amended by protocols nos. 11 and 14, art. 13 (entered into force June 1, 2010), available at www.echr.coe.int/NR/rdonlyres/D5CC24A7DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf (requiring an effective remedy for anyone "whose rights and freedoms set forth in this Convention are violated"); Charter of Fundamental Rights of the European Union, 2000/C 364/1, art. 47, Dec. 18, 2000, available at www.europarl.europa.eu/charter/pdf/texten.pdf (requiring an effective remedy for anyone whose "rights and freedoms guaranteed by the law of the Union are violated"); Abaclat, ICSID Case No. ARB/07/5, [paragraph] [paragraph] 484, 587 (recognizing the importance of an effective remedy); Andrew Le Sueur, Access to Justice Rights in the United Kingdom, 5 Eur. Hum. Rts. L. Rev. 457, 457-58 (2000) (describing availability of the right to an effective remedy as a matter of national, international, and regional law); Strong, Regulatory Litigation, supra note 25 (manuscript at 45-46) (discussing the recognition of an effective remedy nationally, internationally, and regionally).

(403.) McLachlan et al., supra note 10, at 45.

(404.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 484 (discussing whether an effective remedy existed).

(405.) The majority in Abaclat took the view that
   [c]ollective proceedings emerge[] where they constitute[] the only
   way to ensure an effective remedy in protection of a substantive
   right provided by contract or law; in other words, collective
   proceedings [a]re seen as necessary, where the absence of such
   mechanism would de facto ... result[] in depriving the claimants of
   their substantive rights due to the lack of appropriate mechanism.


Id. [paragraph] 484 (citing Strong, De-Americanization, supra note 43, at 238-39). The dissent denied that failure to allow the claims to proceed en masse would deprive the claimants of their substantive rights. See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 254-57 (Abi-Saab, dissenting) (claiming bilateral process was sufficient).

(406.) Abaclat, ICSID Case No. ARB/07/5, [paragraph] 537.

(407.) See Buxbaum, Securities, supra note 29, at 32-34 (discussing constitutional objections to large-scale litigation); Monestier, supra note 29, at 38-39 (discussing constitutional concerns relating to global class actions); Strong, Individual Participatory Rights, supra note 171 (discussing how some may not view individual participatory rights as constitutional in nature, as they "are a species of procedural rights"). Interestingly, the Abaclat majority suggested it was protecting the effective exercise of these rights when it ordered mass arbitration, given that having to face thousands of individual arbitral "proceedings would be a much bigger challenge to Argentina's effective defense rights than a mere limitation of its right to individual treatment of homogenous claims in the present proceedings." Abaclat, ICSID Case No. ARB/07/5, [paragraph] 545.

(408.) See Bignami, supra note 23 (discussing European resistance to U.S.-style analysis of regulatory litigation); Buxbaum, Transnational, supra note 71, at 295-96 (discussing the continued importance of domestic principles of law in transnational litigation); Strong, Regulatory Litigation, supra note 25 (manuscript at 4-6) (discussing constitutional concerns regarding large-scale litigation).

(409.) See In re Vivendi Universal, No. 02 Civ. 5571, 2009 WL 855799, at *3 (S.D.N.Y. Mar. 31, 2009) (discussing constitutional concerns about opt-out representative relief in global class actions); Buxbaum, Securities, supra note 29, at 32-34 (discussing constitutional concerns regarding large-scale international litigation); Monestier, supra note 29, at 38-39 (discussing different countries' approach to large-scale litigation); Strong, Individual Participatory Rights, supra note 171 (discussing the constitutional concerns of individual participatory rights).

(410.) See Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 487-88 (acknowledging that collective relief can affect the ability to mount an individualized defense); Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 139-45, 239-44 (AbiSaab, dissenting) (objecting to use of mass procedures in cases involving non-homogenous claims); Strong, Mass Torts, supra note 39 (explaining how "Abaclat provides a useful recognition of the various types of class and collective relief now available in arbitration"); Strong, Individual Participatory Rights, supra note 171 (discussing how "individual victims should remain free not to pursue the opt-in collective action but instead to seek redress individually"). However, courts, commentators, and arbitrators have found that if the claims are sufficiently homogenous, then the right to mount an individualized defense is not affected in any way. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (analyzing the issue as a matter of commonality);

Abaclat, ICSID Case No. ARB/07/5, [paragraph] 540 (noting that large-scale relief is acceptable when claims are homogeneous); Strong, Individual Participatory Rights, supra note 171 (discussing how in some jurisdictions a defendant's interest in mounting their own individualized defense is protected as a matter of public policy, while in other jurisdictions it exists as a fundamental constitutional right).

(411.) Detailed evaluation of this issue is outside the scope of this Article, although the author has conducted related research elsewhere. See Strong, Individual Participatory Rights, supra note 171 (considering individual participatory rights in cases involving cross-border collective redress).

(412.) The requirement for a rule or remedy appears to focus on the need to establish "that the remedy logically follows from the wrong, rather than being fashioned on ad hoc and flexible grounds." Luff, supra note 21, at 109.

(413.) See McLachlan et al., supra note 10, at 45 (noting the critical nature of the dispute resolution mechanisms found in investment treaties).

(414.) The extent to which a remedy is necessary under investment law is disputed by the parties, but was sufficient to win the approval of two of the three panelists. See Abaclat, ICSID Case No. ARB/07/5, [paragraph] 484 (noting no other viable method of providing a legal remedy); Abaclat, ICSID Case No. ARB/07/5, [paragraph][paragraph] 254-57 (Abi-Saab, dissenting) (disputing whether other means of legal relief were available). Furthermore, developing a large-scale litigation mechanism in the investment context as a function of need is consistent with the way in which class and collective relief has grown in other contexts. See supra notes 77-79 and accompanying text (discussing development of class and collective redress).

(415.) See supra notes 125, 147-63 and accompanying text (discussing the context and increase of collective redress in various countries).

(416.) See Cross, supra note 12 (discussing likelihood of annulment action); Smith et al., supra note 12 (discussing Argentina's history of seeking annulment).

(417.) See supra note 11 and accompanying text (discussing the impact Abaclat will have on mass filings in investment arbitration).

(418.) See Resolution of the European Parliament, supra note 131, [paragraph] 2 (noting the "frivolous litigation and abuse of the U.S. class action system").

(419.) See generally The Annals, supra note 26 (discussing 30 different national regimes).

(420.) See Resolution of the European Parliament, supra note 131 (noting possible adoption of a European form of cross-border collective redress); Directorate General, supra note 57, at 48 (noting low participation rates in European models of collective redress); Strong, Regulatory Litigation, supra note 25 (manuscript at 58) (discussing potential changes in European attitudes toward collective redress).

(421.) See Hensler, supra note 53, at 15-25 (discussing range of collective redress mechanisms around the world); Strong, Regulatory Litigation, supra note 25 (manuscript at 20) (discussing effect of background principles of U.S. law on regulatory litigation).

(422.) See Hensler, supra note 53, at 15-25 (distinguishing U.S. class actions from other forms of large-scale litigation); Nagareda, supra note 23, at 2 (noting impact of background principles of U.S. civil procedure on class actions); Strong, Regulatory Litigation, supra note 25 (manuscript at 32) (discussing regulatory features in U.S. large-scale litigation). Funding is one of the primary roadblocks to large-scale litigation in national systems and will also be an issue in the investment context. In Abaclat, TFA (and thus, by extension, the eight banks that comprised TFA) paid for claimants' attorneys and arbitration fees, a factor that the dissent found disturbing and a potential conflict of interest. See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 65, 425, 428, 682-85 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case-documents/ita0236.pdf (discussing potential conflicts of interest). While certain funding issues could be resolved through the use of third-party litigation funders, the significant costs involved in an investment proceeding suggests that third-party funders will not become involved unless they are virtually assured of a recovery. See Penusliski, supra note 66 (outlining average costs of an ICSID arbitration); Maya Steinitz, Whose Claim Is This Anyway? Third-Party Litigation Funding, 95 Minn. L. Rev. 1268, 1308 (2011) (noting sovereigns already use such funding mechanisms in investment proceedings). Whether this scenario is positive or negative remains to be seen.

(423.) There also must be an appropriate factual scenario to support a mass claim, which may prove to be far more difficult under investment law than under domestic law. See supra note 11 (discussing likelihood that mass procedures will be used in other investment arbitrations).

(424.) See supra notes 77-80 and accompanying text (discussing need as a trigger for class, mass, or collective relief).

(425.) That need can often be framed as a need to address unanticipated risk. See Luff, supra note 21, at 75, 113 (discussing regulatory litigation as a risk regulator); see also supra notes 361 -70 and accompanying text (discussing what constitutes an unanticipated risk).

(426.) See Luff, supra note 21, at 113 (discussing the three-prong test for regulatory litigation).

(427.) See id. ; Strong, Regulatory Litigation, supra note 25 (manuscript at 4) (discussing various views of the propriety of regulatory litigation).

(428.) See supra note 18 and accompanying text (discussing changing views of regulation as a practical and theoretical matter).

(429.) For example, questions could arise as to whether Argentinean courts could and would provide the same kind of neutral, non-political adjudication that is assumed to be at the heart of investment arbitration. See Born, supra note 229, at 828 (discussing nature of investment arbitration).

(430.) For example, Argentina did not allow collective redress in its national courts, which led to one set of practical problems for the Italian bondholders. See Abaclat (formerly Beccara) v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, [paragraph][paragraph] 484, 587 (Aug. 4, 2011), available at http://italaw.com/sites/default/files/case-documents/ita0236.pdf (discussing availability of collective redress in Argentina). However, even if the national court in question does have a class or collective mechanism in place, there is no guarantee that such a device will be procedurally consistent with the regulatory or procedural regimes in other relevant countries. See supra note 109, 116 and accompanying text (discussing regulatory mismatches).

(431.) For example, national courts often find it difficult or impossible to effectuate transnational regulation efficiently and effectively. See supra notes 89-147 and accompanying text (discussing regulatory litigation in the transnational context).

(432.) See Keating v. Superior Court, 645 P.2d 1192, 1209 (Cal. 1982), rev'd on other grounds sub nom., Southland Corp. v. Keating, 465 U.S. 1 (1984) (stating "[c]lasswide arbitration, as Sir Winston Churchill said of democracy, must be evaluated, not in relation to some ideal but in relation to its alternatives").

(433.) See supra notes 88-147 and accompanying text (discussing regulatory litigation in the transnational context).

(434.) See supra notes 376-81 and accompanying text (discussing concerns about inconsistent awards in arbitration).

S.I. Strong *

* D.Phil., University of Oxford (U.K.); Ph.D., University of Cambridge (U.K.); J.D., Duke University; M.P.W., University of Southern California; B.A., University of California, Davis. The author, who is admitted to practice as an attorney in New York and Illinois and as a solicitor in England and Wales, is an Associate Professor of Law at the University of Missouri. This Article was written while the author was the Henry G. Schermers Fellow at the Hague Institute for the Internationalisation of Law and the Netherlands Institute for Advanced Study in the Humanities and Social Sciences, and the author gratefully acknowledges the contributions of both institutions. The author also thanks Hans van Houtte and participants in the Schermers Workshop on "Collective Redress in the Cross-Border Context: Arbitration, Litigation, Settlement and Beyond" for their helpful comments on an earlier draft of this Article.
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Title Annotation:V. Regulatory Arbitration in the Investment Context through VI. Conclusion, with footnotes, p. 300-324
Author:Strong, S.I.
Publication:The Journal of Corporation Law
Date:Jan 1, 2013
Words:33511
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