Mandatory Consumer Arbitration

12 Pages Posted: 5 May 2012

See all articles by Sugandha Kamal

Sugandha Kamal

National Law School of India University

Date Written: May 3, 2012

Abstract

Arbitration clauses in consumer contracts are ubiquitous. Typically, it is the party selling the good or providing the service that will present a contract to the prospective buyer as part of a printed form which is pre-drafted by the seller and used by it in numerous transactions. The buyer or the ultimate consumer rarely has the ability to negotiate substantive terms present in these contracts and will either have to take it or leave it, as the terms exist. One of the several clauses in the form will be a provision for the resolution of dispute exclusively through arbitration and the waiver of the right to litigate by the consumer.

This paper proposes that it is required to be recognized that mandatory arbitration provisions in consumer contracts are inherently unfair, and are distinct from agreements made by parties of equal bargaining power with a free will to pursue alternate dispute resolution. Pre-dispute arbitration clauses in consumer contracts, need to be placed under a separate legal category and should not be given the same deference as other agreements to arbitrate. The first section of the paper will look at the position in United States and the grounds that exist to challenge pre-dispute clauses. The subsequent section will discuss how the problem of mandatory arbitration is dealt with in the European Union.

Keywords: International Commercial arbitration, consumer contracts, mandatory arbitration, arbitration clause

Suggested Citation

Kamal, Sugandha, Mandatory Consumer Arbitration (May 3, 2012). Available at SSRN: https://ssrn.com/abstract=2050418 or http://dx.doi.org/10.2139/ssrn.2050418

Sugandha Kamal (Contact Author)

National Law School of India University ( email )

Nagarbhavi
Bangalore, KS Karnataka 560072
India

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