Arbitration Clause as Unfair Contract Term: Some Observations on the ECJ's Claro Case

2008 ◽  
Author(s):  
Zdenek Novy
Keyword(s):  
Contract Term ◽  
Arbitration Clause ◽  
Unfair Contract Term

scholarly journals The Unfair Contract Term Provisions: What's Transparency Got to do with it?

2017 ◽  
Vol 17 (1) ◽  
pp. 160 ◽  
Author(s):  
Peter Sise
Keyword(s):  
Small Business ◽  
Consumer Contract ◽  
Contract Term ◽  
Consumer Law ◽  
Unfair Term ◽  
Two Factors ◽  
Business Contract ◽  
Unfair Contract Term

Provisions in the Australian Consumer Law allow a court to declare an ‘unfair’ term in a ‘consumer contract’ or a ‘small business contract’ void. When determining whether a term is unfair, a court must consider the extent to which it is transparent. Transparency is important since it is one of only two factors that a court must consider when making this determination. This article will examine whether transparency is logically relevant to the legislative test for whether a term is unfair. It will argue that it is of limited relevance and hence should not be a mandatory consideration for determining unfairness. It will then consider several alternatives to making transparency a mandatory consideration.

scholarly journals The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 47
Author(s):  
Sandrine Brachotte
Keyword(s):  
United Kingdom ◽  
Cultural Studies ◽  
Cultural Diversity ◽  
Supreme Court ◽  
Legal Pluralism ◽  
The Other ◽  
The United Kingdom ◽  
Arbitration Clause ◽  
The Supreme Court ◽  
Employment Equality

This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of arbitration. It further identifies two intertwined issues regarding cultural diversity, which find their source in this monist conception. Firstly, through the study of Jivraj v. Hashwani ([2011] UKSC 40), this article shows that the governance of religious arbitration may generate a conflict between arbitration law and equality law, the avoidance of which can require sacrificing the objectives of one or the other branch of law. The Jivraj case concerned an Ismaili arbitration clause, requiring that all arbitrators be Ismaili—a clause valid under arbitration law but potentially not under employment-equality law. To avoid such conflict, the Supreme Court reduced the scope of employment-equality law, thereby excluding self-employed persons. Secondly, based on cultural studies of law, this article shows that the conception of arbitration underlying UK arbitration law is ill-suited to make sense of Ismaili arbitration. In view of these two issues, this article argues that UK arbitration law acknowledges normative multiplicity but fails to embrace the cultural diversity entangled therewith.

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