Legal Controls on the Use of Arbitration Clause in B2C e-Commerce Contracts

Julia Hörnle

Abstract

This article reviews the law on the enforceability of consumer arbitration clauses and discusses whether such clauses would be enforceable if contained in B2C ecommerce contracts. In so doing, it makes a distinction between pre- and post dispute arbitration clauses.
The article dicusses and analyses arbitrability and the control of unfair contract terms in two major common law jurisdictions, namely the UK and the US. For this analysis the article compares and contrasts the control of unfair contract terms in the UK with the doctrine of unconscionability of certain adhesion clauses in the US. The UK law in this area is largely based on an EU Directive (Directive 93/13/EEC on unfair terms in consumer contracts) and its implementing Regulations (Unfair Terms in Consumer Contracts Regulations 1999). However in addition, national law (the Arbitration Act 1996) provides for additional consumer protection. 

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