Publication details

Arbitration clause as unfair contract term from the perspective of Czech and EC law

Authors

NOVÝ Zdeněk

Year of publication 2008
Type Appeared in Conference without Proceedings
MU Faculty or unit

Faculty of Law

Citation
Description The paper presented at the conference in Turin deals, in general terms, with the relationship between consumer protection in the EU and arbitration as a mechanism of dispute resolution. Second, the ECJ Claro case is examined with particular emphasis on the influence of this case on Czech law. Also, paper reminds us that the Directive on unfair contract terms has not been still correctly implemented into Czech law. This is due to the fact that the Czech consumers have to claim invalidity of arbitration clause as unfair contract term, for the Czech Civil Code lays down so called relative invalidity of unfair contract term. What is more, the section 33 of the Czech Arbitration Act seems to be at variance with the Claro decision as well as with the article 6 of the Directive on unfair contract terms. Section 33 of the Czech arbitration Act indeed stipulates that a person, who wants to attack the arbitration award on the footing that the arbitration agreement is invalid to make it annuled, may do so only if the invalidity was claimed with his or her initial submission in the arbitration proceedings. The rules of section 33 and 55 para 2 prevent consumers from the effective procedural protection. The reason behind this is that consumer has no time to invoke the invalidity of arbitration clause, since he or she is given only short period to react on the arbitration by the businessmen. Moreover, the businessmen often include in their standard form contracts arbitration clauses which appoint arbitrators ad hoc who are formally not linked to them, yet the arbitrators are given a job by business so he or she is neither independent nor impartial. The paper offers possible, though rather limited, solutions for the consumers to defend themselves against unfair arbitration clauses.

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