Autonomy in B2C Arbitration: Is the European Model of Consumer Protection Really Adequate? - Czech and Central European Yearbook of Arbitration - 2012: Party Autonomy versus Autonomy of Arbitrators
Prof. Dr. Alexander J. Bělohlávek holds the chair of legal studies at the faculty of economics of the Technical University of Ostrava [Czech Republic] and a visiting professorship at the Department of International and European Law of the faculty of law at Masaryk University in Brno [Czech Republic]. He is an attorney-at-law in Prague [Czech Republic] (with a branch office in N.J. [USA]), president of the World Jurist Association (Washington D.C., USA), and arbitrator in Prague [CZE], Vienna [Austria], Kyiv [Ukraine], Moscow [Russia], Almaty [Kazakhstan], Vilnius [Lithuania], Chisinau [Moldava], at the ICC, and under UNCITRAL rules, among others.
Consumer protection has become a legal phenomenon to reckon with on a global scale, with repercussions for, among others, contracts concluded between consumers and business entities -- i.e., B2C contracts. While the path chosen by EU law is one of special legal protection (on the basis of special legislation) and the introduction of restrictions, the model applied in the United States is based on protection afforded according to the general law of contract principles. The author maintains that the model applied in the United States is more efficient as it does not prevent markets which are based on a high degree of autonomy (but also responsibility) on the part of all contractual partners, including the consumer, from prospering. He argues that “liability” is the other side of the coin labeled “autonomy” and must be applied with a broad brush, both in terms of substantive-law aspects and procedural aspects. This also extends to arbitration agreements concluded between consumers and business entities. He maintains there is no need for special restrictions when it comes to incorporating arbitration clauses in consumer contracts, and that instead, the lawmaker should focus on seeing to it tha the basic principles of arbitration are observed. In concluding he finds that the European model often leads to the abuse of the system of consumer protection by the consumers themselves and that the German model represents an interesting and efficient model, striking a compromise between the restrictive system established under EU law and the U.S. model.