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85 Tul. L. Rev. 1221 (2010-2011)

handle is hein.journals/tulr85 and id is 1231 raw text is: Arbitration Law in Flux and Maritime Implications Edward E Sherman* I. INTRODUCTION. .....................................1221 II. CLASS ARBITRATION WHEN THE CONTRACT IS SILENT............1222 ifi. UNCONSCIONABILITY DETERMINATION IS FOR THE ARBITRATOR......................................1231 IV INVALIDATION OF ARBITRATION CLAUSES UNDER STATE CONTRACT LAW FOR UNCONSCIONABLITY OF CLASS ARBITRATION BANS .....................................1234 V CONCLUSION ................................. .....1239 I. INTRODUCTION Arbitration clauses are contained in many if not most maritime contracts, and maritime arbitration practice is a fairly settled process for resolving maritime disputes. But recent developments in the larger world of arbitration have unsettled some of the basic assumptions, and in a number of areas arbitration law is in flux. These developments bear watching by maritime practitioners, as they will undoubtedly impact the functioning of arbitration in the maritime context. A highly unsettled area of the law over the past decade has been class arbitration. The issue is whether, when there is an arbitration clause in a contract, the arbitration can be conducted on behalf of a class of persons similarly situated, or must be limited to the individual who is a party to the contract and arbitration clause. Class arbitration has been conducted in California and a few other states for a number of decades.' Class arbitration practice has borrowed a number of the features of the class action rules that apply in courts, modifying them when necessary.2 Arbitration clauses rarely provide for class arbitration. In standard form contracts, like the charter party used in * © 2011 Edward E Sherman. WR. Irby Chair and Moise S. Steeg, Jr., Professor of Law, Tulane University School of Law. A.B. 1959, Georgetown University; M.A. 1962, M.A. 1967, University of Texas; J.D. 1962, S.J.D. 1981, Harvard Law School. 1. See ifia notes 44-45 and accompanying text. 2. See infa notes 13-14, 72 and accompanying text. 1221

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