The U.S. Administration in Transition and the Impact of Technology: The Case of Pre-Dispute Arbitration

Abstract

The Trump Presidency has halted significant changes in consumer rights that were introduced under President Obama’s term. The changes had to do with pre-arbitration dispute clauses in consumer contracts, clauses that required consumers, at the time of the consummation of the transaction, to submit all future disputes to arbitration and typically preclude the avenue of class actions. While the U.S. has traditionally upheld that clauses, the EU has taken a different path. The U.S. approach has significantly limited consumers’ access to justice, a problem that has become all the more acute in the digital age for two reasons. First, the prevalence of such clauses has increased in the age of e-commerce and online agreements. Second, these clauses constrained the spread of Online Dispute Resolution (ODR) – convenient and inexpensive online avenues for the resolution of consumer disputes and have obstructed efforts to establish an international ODR scheme for cross-border consumer disputes. While the U.S. began to make steps towards the regulation of pre-dispute arbitration clauses, these efforts were stifled in the aftermath of the 2016 elections.

Keywords: Consumer Contracts, E-Commerce, Pre-Dispute Arbitration, Online Dispute Resolution, ODR