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Norbert Reich
More clarity after ‘Claro ’?
The paper takes the recently decided Claro-case of the ECJ as a starting point for a more general discussion on arbitration clauses in consumer contracts in relation to existing ADR mechanisms. Claro did not condemn these clauses, but left this to EU Member state law which is in an inchoate state of confusion and divergence. Claro however insisted on the importance of consumer protection in secondary recognition proceedings. In the opinion of this author, this ‘pro-consumer’ spirit of Claro should encourage a more critical approach towards arbitration clauses without completely condemning them; the US model generously allowing arbitration clauses in consumer contract should not be followed. If ADR mechanisms exist (whether national or EU wide), an arbitration clause should not prevent the consumer of using these remedies. Cross-border arbitration clauses should be disallowed if they deprive the non-mobile consumer of a jurisdiction of his home country. On the other hand, if the consumer voluntarily moves cross-border or actively uses e-commerce devices, and thereby explicitly agrees to an arbitration clause, his remedies will be limited by the applicable lex arbitrationis.
European Review of Contract Law, Walter de Gruyter
Print ISSN: 1614-9920
Volume: 3, 02/2007
Pages: 41 - 61