Consumer Arbitration as the Subject Matter of Proceedings in Court - Part V - B2C Arbitration: Consumer Protection in Arbitration
Alexander Bělohlávek is Founder and Senior Partner of The Bělohlávek Law Offices, Prague. He is a Member of the International Court of Arbitration at the International Chamber of Commerce (ICC) in Paris as well as Member of the ICC Commission on International Arbitration and a Member of the National Committee of the ICC in the Czech Republic. He has acted as arbitrator or counsel in more than 170 international arbitrations and is listed as arbitrator with the international arbitral centers of several economic chambers in Central Europe. He has published numerous books and articles on arbitration and business law.
Originally from B2C Arbitration: Consumer Protection in Arbitration
V. Consumer Arbitration as the Subject Matter of Proceedings in Court
609. If any consumer arbitration issues become the subject of litigation, it is probable that the case will in any connection concern the validity of the arbitration clause. This is the reason why this issue was focused on in the preceding chapters of this book. The following section will concentrate on consumer arbitration problems which the courts commonly handle. The individual subsections are arranged according to the various procedural stages during which the courts may become involved in these matters.
V.1. Validity of arbitration agreements in consumer contracts
V.1.1. Importance of the validity of arbitration agreements
610. A valid arbitration agreement confers the exclusive jurisdiction to hear and resolve a dispute upon arbitrators. Hence, in most states the arbitration agreement automatically excludes the jurisdiction of courts, if the subject matter of the dispute is covered by the arbitration agreement.1 According to most national laws, the courts dismiss or reject a claim if the matter is covered by an arbitration agreement unless the arbitration agreement is invalid.
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