Anna Isfort, Bucerius Law School Hamburg

Class Arbitration in Germany
Binding non- participants in cartel damage arbitration

Art. 101 AEUV punishes price agreements that are suitable to endanger the free market. Such cartels, therefore, consist of different parties. They also affect many different parties. Cartel damage proceedings, therefore, affect different cartel participants and affected parties who might later become multiple respondents or claimants. Since arbitration is an appropriate forum to solve these disputes, it must be considered how arbitral proceedings can solve these disputes efficiently by guaranteeing access to justice to all parties and avoiding the risk of conflicting awards and parallel proceedings. This research seeks to elaborate on this problem and to show that in some cases multi-party arbitration alone might not be suitable to address the issues mentioned above but the tribunal should seek to render an award also binding to non-participating parties. Class Arbitration can not only be used for cartel damage disputes but in all cases of mass litigation such as consumer and civil rights disputes. Essentially, there is a variety of cases where one claimant will not have the financial resources to pursue their case. Here, only collective redress can guarantee access to justice.

Class Action and Class Arbitration have been used to solve disputes concerning all subjects mentioned above for many years. When researching a possible implantation of Class Arbitration in Germany, I will use a comparative law approach. First, I will analyze the status in the USA and then analyze how this model should be adapted in order to be successfully established in Germany and the European Union.