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Gratiarum - Acknowledgments
Auctorium - About the Author
Index Compendiorum - List of Abbreviations
I.1. Subject of this publication
I.2. Different national approaches and experience in the resolution of consumer disputes
I.3. Positive and negative aspects of litigation and arbitration in consumer disputes, fair trial, and efficiency of dispute resolution
I.4. Importance of consumer protection against the background of the dispute resolution mechanism
I.5. Risk of abuse of the special protection by the consumer
II. Terminological and Conceptual Delimitation of Consumer Disputes with respect to Arbitration
II.1. Consumer protection laws
II.2. Arbitration
II.3. Public policy and public interest
II.3.1. Inconsistent application of two materially different categories
II.3.2. Public policy (ordre public)
(a) Domestic and international public policy (ordre public) in legal cultures
(b) Public policy in arbitration
II.3.3. Public interest
(a) National basis for the historical delimitation of public interest
(b) Genesis and the constitution of public interest
(c) Delimitation of public interest
II.3.4. Public policy and public interest in EU law
(a) Autonomous interpretation of public policy and public interest; An exception to the freedoms guaranteed by primary EU law
(b) Free movement of persons and protection of security
(c) Access to information
(d) Consumer protection
II.3.5 Public interest, overriding mandatory rules and comparison with public policy
II.4. Issues common to consumer protection and Arbitration
II.5. Scope of consumer protection issues
II.5.1. Weaker contracting party and the average consumer
II.5.2. Claims made in consumer disputes
II.5.3. Consumer contract
(a) Consumer contract (contract concluded by a consumer)
(b) Consumer and professional
(c) The average consumer (connection with the essential and other terms of the contract and with arbitration agreements)
(d) Multilateral criteria defining a consumer contract
II.6. Resolution of consumer issues
II.7. Consumer arbitration
II.8. Right to legal protection versus right to judicial protection and the importance of autonomy
II.9. Role of courts with respect to consumer arbitration
II.9.1. Appeals (review)
II.9.2. Court intervention at the stage of enforcement of arbitral awards
II.9.3. Control and support exercised by the courts (juge d'appui)
III. Consumer Protection and Consumer Disputes under EU Law
III.1. Restrictive model under EU law
III.2. Fundamental consumer rights
III.3. Directive 93/13/EEC on unfair terms in consumer contracts (the "Directive")
III.3.1. Identification of unfair terms in court rulings
III.3.2. Annex to the Directive
III.3.3. Application of the Annex to the Directive to consumer arbitration
III.3.4. Obligation of the [arbitral] tribunal to decide according to the applicable laws and regulations
III.4. EC Recommendation No. 98/257/EC of 30 March 1998, regarding the resolution of consumer disputes
III.5. Other sources of EU law
III.5.1. Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998
III.5.2. Liability for defective products
III.5.3. EU laws with no impact on consumer arbitration
III.6. Concept of single European Contract Law (contractual framework)
III.6.1. Genesis and development
III.6.2. The Green Paper
III.6.3. EP Resolution of 8 June 2011 (the "Resolution")
(a) Contents of the EP Resolution
(b) Legal nature of the instrument of European Contract Law
(c) Scope of application of the instrument
(d) Application of the instrument in practice
(e) Importance of the Resolution
III.6.4. Influence of the EP’s Resolution on arbitration
III.7. Proposals of the European Commission regarding the alternative resolution of consumer disputes and regarding online consumer disputes of 29 November 2011
III.7.1. Legal context of the Commission's legislative Proposals
III.7.2. Proposed legislative procedure
III.7.3. Commission Communication on alternative dispute resolution for consumer disputes in the Single Market
III.7.4. Proposal for a Directive on alternative dispute resolution for consumer disputes ("ADR Directive")
III.7.5. Legal elements of the Proposal
III.8. Proposal for a Regulation on online dispute resolution for consumer disputes ("ODR Regulation")
III.8.1. Premises of the proposed Regulation
III.8.2. Legal elements of the Proposal
III.8.3. Implications of the proposed EU legislation for arbitration
III.8.4. Assessment of the proposals presented by the EU Commission
III.9. Case law of the ECJ concerning arbitration and interpretation of the Directive and other consumer protection instruments
III.9.1. Case law of the ECJ in mutual comparison
III.9.2. ECJ Judgment, Case C-168/05 of 26 October 2006 (Elisa María Mostaza Claro v. Centro Móvil Milenium SL)
(a) Conclusions of the ECJ
(b) Facts of the case
(c) The ECJ's reasoning and conclusions
(d) Notes on the judgment
III.9.3. ECJ Judgment, Cases C-240/98 through C-244/98 of 27 June 2000 (Oceáno Grupo Editorial SA)
(a) Conclusions of the ECJ
(b) Facts of the case
(c) The ECJ's reasoning and conclusions
III.9.4. ECJ Judgment, Case C-473/00 of 21 November 2002 (Cofidis SA v. Jean-Louis Fredout [Cofidis])
(a) Conclusions of the ECJ
(b) Facts of the case
(c) The ECJ's reasoning and conclusions
(d) Assessment of the merits
III.9.5. ECJ Judgment, Case C-40/08 of 6 October 2009 (Telecomunicaciones SL v. Cristina Rodríguez Nogueira [Asturcom])
(a) Conclusions of the ECJ
(b) Facts of the case
(c) The ECJ's reasoning and conclusions
III.9.6. ECJ Judgment, Case C-243/08 of 4 June 2009 (Pannon GSM Zrt v. Sustikné Győrfi Erzsébet [Pannon GSM])
(a) Conclusions of the ECJ
(b) Facts of the case
(c) Arguments of the ECJ
(aa) The first question: Examination of unfairness ex officio (of the court's own motion)
(bb) The second question: Examination of unfairness where the court has sufficient factual and legal information
(cc) The third question: Circumstances decisive or the assessment of
(un)fairness and (im)balance
(d) Obligation of the arbitrators to instruct the parties about the unfairness of a contractual term
III.9.7. ECJ Order, Case C-76/10 of 16 November 2010 (Pohotovosťs.r.o. v. Iveta Korčkovská [Pohotovosť])
(a) Summary
(b) Factual and legal findings
(c) Form of the ECJ's ruling
(d) Permissibility of the preliminary reference Procedure
(e) Arguments of the ECJ
(aa) The first question: Information in the agreement about total annual costs of the credit
(bb) The second question: Sub-par. (a)
(cc) The second question: Sub-pars. (b) and (c)
(dd) The third question: Assessment of the unfairness of the contract in proceedings on enforcement of a foreign arbitral award
III.9.8. ECJ Judgment, Case C-137/08 of 9 November 2010 (VB Pénzügyi Lízing Zrt. v. Ferenc Schneider): Unfairness of a choice-of-court clause
(a) Conclusions of the ECJ
(b) Factual and legal findings
(c) Preliminary reference procedure
(d) The ECJ’s reasoning and conclusions
(aa) Conclusions regarding the third question originally referred: Informing the Minister of Justice
(bb) The first and the second additional questions: The jurisdiction of the ECJ to interpret the concept of "unfair term" and the obligation of the national court to apply the interpretation to the facts of a particular case
(cc) The third additional question: The obligation of the court to undertake an ex officio review
III.10. Requirements imposed on EU Member States
IV. Consumer Arbitration in Selected Countries
IV.1. [AUT] [AUSTRIA]
IV.1.1. Principles and sources of consumer protection (substantive-law basis)
IV.1.2. Consumer arbitration
IV.2. [BEL] [BELGIUM]
IV.2.1. Principles and sources
IV.2.2. Arbitration
IV.2.3. Mediation
IV.3. [BGR] [BULGARIA]
IV.3.1. Arbitration
IV.3.2. Mediation
IV.4. [CAN] [CANADA]
IV.4.1. The approach adopted by certain provinces
IV.4.2. The Federal approach
IV.4.3. Case law – Decision of the Supreme Court of Canada, Case No. 31067 of 13 July 2007 (Dumoulin et Union des consommateurs v. Dell Computer Corp.)
(a) Basic conclusions
(b) Factual and legal findings
(c) Arguments of the parties and the Court's legal Conclusions
IV.5. [CZE] [CZECH REPUBLIC]
IV.5.1. Arbitration laws
(a) Legal basis and importance of arbitration in the Czech Republic
(b) Amendment to the Arbitration Act (Czech arbitration law in effect since 1 April 2012)
(aa) Concept of the Amendment to the ArbAct [CZE]
(bb) Arbitration agreement concluded by a consumer (arbitration agreement for consumer disputes)
(cc) Independence and impartiality of Arbitrators
IV.5.2. Protection of consumers under substantive law
(a) Sources and principles of consumer protection in contemporary legislation (CC [CZE])
(b) Consequences of unfair terms in consumer Contracts
(c) Proposal for a new Civil Code (NCC [CZE])
IV.5.3. Case law
(a) Judgment of the Constitutional Court of the Czech Republic [CZE], Case No. IV. ÚS 2157/08 of
24 September 2008
(aa) Legal opinion of the Constitutional Court
(bb) Factual and legal findings
(cc) Commentary on the judgment of the Constitutional Court
(b) Judgment of the ConCourt CR, Case No.
I ÚS 3227/07 of 8 March 2011 203
(aa) Conclusions and importance of the Decision
(bb) Factual and legal circumstances of the case and court decisions regarding setting aside an arbitral award
(cc) Decision of the Constitutional Court on merits
(dd) Correlation between decision and consumer Protection
(c) Resolution of the Constitutional Court of the Czech Republic, Case No. II. ÚS 3057/10 of 5 October 2011
(aa) Conclusions of the Constitutional Court
(bb) From the facts of the case; decisions of the lower courts
(cc) Constitutional complaint and conclusions adopted by the Constitutional Court in its ruling, including the reasons
(d) Judgment of the Constitutional Court of the Czech Republic, Case No. II. ÚS 2164/10 of 1 November 2011: Correlation between the protection of autonomy in negotiating arbitration agreements and the protection of the weaker contracting party (consumer protection)
(aa) Conclusions of the Constitutional Court
(bb) Factual and legal findings
(cc) Constitutional complaint and conclusions adopted by the Constitutional Court in its ruling, including reasons
1. Result of the proceedings
2. Contractual autonomy and consumer Protection
3. EU-compliant interpretation of consumer protection law
4. Internal inconsistencies in the reasons for the judgment regarding the nature of arbitration and manifest conflict with other rulings of the Constitutional Court
5. Proportionality of fundamental rights in consumer contracts and the requirement of transparency
6. Requirement of appeal
7. Right to a lawful judge and rules concerning the appointment of arbitrator
(e) Judgment of the Supreme Court CR [CZE], Case No. 23 Cdo 1201/2009 of 29 June 2010
(aa) Conclusions of the Supreme Court
(bb) Factual and legal findings
(cc) Decisions of the trial court and the court of appeals
(dd) Conclusions of the court of appeals and the subsequent decision of the Supreme Court, including reasons
(f) Resolution of the SC CR [CZE], Case No. 31 Cdo 1945/2010 of 11 May 2011: Arbitration clause which impairs the position of the "weaker" contracting party; permanent arbitral institutions versus "ad hoc" arbitrators
(aa) Conclusions of the Supreme Court
(bb) Factual and legal findings and decisions of the trial court and the court of appeals
(cc) Cassation appeal
(dd) Decision of the cassation court and the cassation court's arguments
(g) Resolution of the Supreme Court of the Czech Republic [CZE], Case No. 30 Cdo 4415/2010 of 27 July 2011
(aa) Conclusions of the Supreme Court
(bb) Factual and legal findings
(cc) Subject matter of the proceedings before the SC CR [CZE]
(dd) Reasons for the decision
IV.6. [DEU] [GERMANY]: Friendly approach to consumer Arbitration
IV.6.1. Legal control of contractual terms
IV.6.2. Tolerant application of the Directive and national arbitration laws
IV.6.3. Case law
(a) Judgment of the Federal Court of Justice (Supreme Court [DEU]), Case No. III ZR 265/03 of 13 January 2005
(aa) Conclusions of the court
(bb) Factual and legal findings
(cc) Reasons for the decision
(b) Judgment of the Federal Court of Justice (Supreme Court [DEU]), Case No. III. ZR 164/06 of 1 March 2007: Limitation of the right to appoint an arbitrator does not render the arbitration agreement invalid
(aa) Conclusions of the court
(bb) Factual and legal findings
(cc) Reasons for the decision
(c) Judgment of the Federal Court of Justice (Supreme Court [DEU]), Case No. XI 349/08 of 8 June 2010 (M v. N): Law applicable to arbitration agreement and form of arbitration agreement
(aa) Conclusion of the court
(bb) Factual and legal findings
(cc) Arguments of the court
(d) Decision of Krefeld District Court, Case No. 6 O 186/95 of 29 April 1996 (Richard Zellner v. Phillip Alexandre Securities and Futures Ltd.)
(e) Judgment of the BGH [DEU], Case No. XI ZR 349/08 of 8 June 2010: Arbitration clauses in contracts between a consumer and a foreign securities broker
(aa) Conclusions of the court
(bb) Factual and legal findings and decisions of the trial court and the court of appeals
(cc) Decision and arguments of the Federal Court of Justice (BGH [DEU])
(f) Judgment of the BGH [DEU], Case No. III ZR 16/11 of 19 May 2011 (C. v. D.): Non-performance of formal requirements and impossibility of subsequent validation of the arbitration agreement
(aa) Conclusion of the court
(bb) Factual and legal findings
(cc) Arguments of the court
IV.7. [DNK] [Denmark]
IV.8. [ESP] [SPAIN]
IV.8.1. Spanish approach to consumer arbitration
IV.8.2. Case law - Decision of the Madrid Court of Appeals [ESP], Case No. 28079370102010100498,
12 November 2010 (Juan Pedro v. Metrovacesa S.A.): The principle of good faith protects both the consumer and the professional
(a) Legal opinion of the Court
(b) Factual and legal findings and other conclusions of the Court
(c) Notes on the judgment
IV.9. [EST] [ESTONIA]
IV.10. [FRA] [FRANCE]
IV.10.1. Legal control of contractual terms
IV.10.2. Consumer arbitration
IV.11. [GBR] [UNITED KINGDOM]
IV.11.1. Sources and principles of consumer protection
IV.11.2. Consumer arbitration
IV.11.3. Case law
(a) Decision in Zealander & Zealander v. Laing Homes Limited of 1999
(b) Decision in Picardi v. Cuniberti of 2002, Westminster Building Company Limited v. Beckingham of 2004 and Allen Wilson Shopfitters and Builders v. Buckingham of 2005: Importance of the information provided to consumer
IV.12. [HRV] [CROATIA]
IV.13. [HUN] [HUNGARY]
IV.14. [CHE] [SWITZERLAND]
IV.15. [ITA] [ ITALY]
IV.16. [LTU] [LITHUANIA]
IV.17. [LVA] [LATVIA]
IV.17.1. Latvian arbitration laws
IV.17.2. Case law - Judgment of the Latvian Constitutional Court, Case No. 2004-10-01 of 17 January 2005
IV.18. [MEX] [MEXICO]
IV.19. [NLD] [NETHERLANDS]
IV.20. [NOR] [NORWAY]
IV.20.1. Arbitration
IV.20.2. Mediation
IV.21. [POL] [POLAND]
IV.21.1. Tradition of consumer protection in Poland
IV.21.2. Conditions for consumer arbitration
IV.22 [PRT] [PORTUGAL]
IV.23 [RUS] [RUSSIA]
IV.24. [SVK] [SLOVAKIA]
IV.24.1. Sources and principles of consumer protection
IV.24.2. Consumer arbitration
IV.24.3. Case law - Resolution of the Regional Court in Pre'ov [SVK], Case No. 17CoE/99/2010 of 15 February 2011
(a) Conclusions of the court
(b) Factual and legal findings and reasons for the trial court's decision
(c) Decision and arguments of the court of appeals
(d) Notes on the judgment
IV.25. [SWE] [SWEDEN]
III.25.1. Sources and principles of consumer protection
III.25.2. Consumer arbitration
IV.26. [USA] [UNITED STATES OF AMERICA]
IV.26.1. Support for consumer arbitration
IV.26.2. Limitation of consumer arbitration
IV.26.3. Proposal for a new federal law in the U.S. (draft Arbitration Fairness Act, AFA [USA])
IV.26.4. Enforcement of arbitral awards rendered in the U.S. in consumer disputes abroad
IV.26.5. Case law
(a) Decision of the Supreme Court of the United States of America, No. 82-500 of 23 January 1984 (Southland Corp. et al. v. Keating et al.);
465 U.S. 1 (1984): Special protection afforded to franchisees
(aa) Main conclusions of the decision
(bb) Factual and legal findings
(cc) Arguments of the parties and the Court's legal conclusions
(dd) Notes on the judgment
(b) Decision of the Supreme Court of the United States of America, No. 93-1001 of 18 January 1995 (Terminix v. Dobson)
(aa) Main conclusions of the Court
(bb) Factual and legal findings
(cc) Arguments of the parties and the Court's legal Conclusions
(c) Judgment of the Court of Appeal of California, No. A068753 of 3 November 1998 (Badie v. Bank of America)
(aa) Conclusions of the Court
(bb) Factual and legal findings
(cc) Arguments of the parties and the Court's legal conclusions
(d) Judgment of the United States Court of Appeals, Sixth Circuit, No. 98-028 30 / 99-3854 of 8 September 2000 (James D. Stout; Shirley A.
Brown v. J.D. Byrider, a/k/a Docherty Motors, Inc.; T & J Acceptance Corporation, d/b/a Carnow Acceptance Company)
(aa) Conclusions of the Court
(bb) Factual and legal findings
(cc) Arguments of the courts
(e) Judgment of the Supreme Court of Arkansas, No. 1981594 of 15 September 2000 (Alabama Catalog Sales v. Harris): Jurisdiction over the validity of arbitration agreements
(aa) Conclusion of the Court
(bb) Factual and legal findings
(cc) Arguments of the courts
(f) Judgment of the Supreme Court of Arkansas, No. 99-1398 of 21 September 2000 (ShowMe TheMoney v. Williams): Requirement of mutuality of arbitration clauses
(aa) Conclusion of the Court
(bb) Factual and legal findings
(cc) Arguments of the courts
(g) Decision of the Supreme Court of the United States, Case No. 09-893 of 11 April 2011 (Vincent Concepcion & others v. AT&T Mobility LLC): Prevalence of the purpose of arbitration over special consumer protection
(aa) Conclusions of the Court
(bb) Factual and legal findings
(cc) Arguments of the courts
(dd) Commentary on the decision
V. Consumer Arbitration as the Subject Matter of Proceedings in Court
V.1. Validity of arbitration agreements in consumer contracts
V.1.1. Importance of the validity of arbitration agreements
V.1.2. Scope of the concept of "validity of an arbitration agreement" in consumer relations
V.1.3. Law applicable to the validity of the arbitration Agreement
V.1.4. Special arbitration laws and EU courts
V.1.5. Decision in Philip Alexander Securities Futures Ltd v. Bamberger [GBR-ENG] / [DEU] .
V.1.6. Decision in Heifer International Inc. v. Helge Christiansen et Christiansen Arkitekter KS MAA PAR et al. [GBR-ENG]
V.2. Application of various legal systems to the definition of consumer and the validity of an arbitration agreement
V.2.1. Importance of the definition of consumer
V.2.2. Decision in Heifer International Inc. v. Helge Christiansen et Christiansen Arkitekter KS MAA PAR et al. [GBR-ENG]
V.2.3. International practice
V.2.4. Consequences of the decision on the invalidity of an arbitration agreement
V.3. Procedural issues and stages of proceedings
V.3.1. Confirmation or refusal of jurisdiction by the arbitral tribunal / Application of the "Kompetenz-Kompetenz" principle
V.3.2. Consumers’ arguments against arbitration Agreements
V.3.3. Costs of proceedings and availability of legal protection
V.3.4. Consequences of the decision on the invalidity of an arbitration agreement in a consumer contract
V.3.5. Challenging arbitral awards concerning consumer contracts
(a) Courts in proceedings which are connected with and follow arbitration and the scope of judicial review
(b) Arguments important for courts in proceedings which are connected with and follow arbitration
V.4. Enforcement of arbitral awards rendered in consumer disputes
V.4.1. Jurisdiction
V.4.2. Laws applicable to enforcement of arbitral awards
V.4.3. Enforcement of arbitral awards rendered in states with a lower degree of consumer protection
V.4.4. Decision of the Austrian Supreme Court (OGH [AUT]), Case No. 3 Ob 144/09m of 22 July 2009: Breach of consumer protection laws does not form part of international or EU public policy
(a) Importance of the decision
(b) Facts of the case
(c) Conclusions of the Austrian court
(d) Reasons for the decision
(e) Commentary on the decision
V.5. Courts as "juge d'appui" in consumer disputes: Auxiliary role of courts with respect to arbitration
V.6. Appointment of arbitrators
V.6.1. Appointment and replacement of arbitrators
V.6.2. Challenging arbitrators
V.7. Applications for interim measures, including anti-arbitration Injunctions
Bibliography
I. Monographs
I.A. Literature directly related to the topic
I.B. Literature closely related to the topic
II. Articles in Periodicals and Anthologies
II.A. Literature directly related to the topic
II.B. Literature closely related to the topic
III. Literature Available Online
IV. Master's, Doctoral, and Dissertation Theses as well an Other Qualification, Scientific, and Scientific-Pedagogical Papers
Index
I. Introductory Notes to the Index
II. Keyword Index
III. Table of Cited Rules (Normative Acts and Other Sources)
III.1 Rules of national origin
III.2. Rules of international (other than national) origin, including EU rules and rules of international (supranational) courts
III.3. Internationally applied / recognized rules of other than state (public) origin
IV. Table of References to Decisions Rendered in Arbitration or Litigation (Overview According to Parties, Fora, Designation and Date of Decision) 501
IV.1. Decisions of national courts and constitutional courts arranged by individual state
IV.2. Table of cases & Decisions rendered by international fora (courts, tribunals) arranged by individual institution
IV.3. Decisions arranged by designation of parties (alphabetically)
V. Table of References to States