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A ‘Trojan Horse’ in the Access to Justice – Party Autonomy and Consumer Arbitration in conflict in the ADR-Directive 2013/11/EU?

A ‘Trojan Horse’ in the Access to Justice – Party Autonomy and Consumer Arbitration in conflict... ERCL 2014; 10(2): 258­280 Articles Norbert Reich Summary: Contractual arbitration clauses in consumer contracts have been subject to controversy in many jurisdictions; recent US and Canadian case law of their Supreme Courts have been used as examples. EU law has taken a mixed and to some extent limited approach in including ADR-entities `imposing' a solution in its recent ADR Directive 2013/11. There seems to be an indirect encouragement to develop consumer arbitration schemes in Member States as a second route of access to justice. It is too early to evaluate this new and somewhat clandestine policy of the EU.The paper insists on some additional procedural guarantees should consumer arbitration schemes become more popular among Member countries, even though Directive 2013/11 already contains some `minimum protection' provisions on `specific acceptance' and applicable law. The basic reference for such additional protection seems to be Article 47 of the EU Charter of Fundamental Rights, seen together with Article 19(1) para2 TEU whereby Member States have to `provide remedies sufficient to ensure effective legal protection' of EU consumers. At the time of writing the implementation measures of Member States concerning Directive 2013/11 have to be awaited before making any final judgment as http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Review of Contract Law de Gruyter

A ‘Trojan Horse’ in the Access to Justice – Party Autonomy and Consumer Arbitration in conflict in the ADR-Directive 2013/11/EU?

European Review of Contract Law , Volume 10 (2) – Jun 1, 2014

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Publisher
de Gruyter
Copyright
Copyright © 2014 by the
ISSN
1614-9920
eISSN
1614-9939
DOI
10.1515/ercl-2014-0009
Publisher site
See Article on Publisher Site

Abstract

ERCL 2014; 10(2): 258­280 Articles Norbert Reich Summary: Contractual arbitration clauses in consumer contracts have been subject to controversy in many jurisdictions; recent US and Canadian case law of their Supreme Courts have been used as examples. EU law has taken a mixed and to some extent limited approach in including ADR-entities `imposing' a solution in its recent ADR Directive 2013/11. There seems to be an indirect encouragement to develop consumer arbitration schemes in Member States as a second route of access to justice. It is too early to evaluate this new and somewhat clandestine policy of the EU.The paper insists on some additional procedural guarantees should consumer arbitration schemes become more popular among Member countries, even though Directive 2013/11 already contains some `minimum protection' provisions on `specific acceptance' and applicable law. The basic reference for such additional protection seems to be Article 47 of the EU Charter of Fundamental Rights, seen together with Article 19(1) para2 TEU whereby Member States have to `provide remedies sufficient to ensure effective legal protection' of EU consumers. At the time of writing the implementation measures of Member States concerning Directive 2013/11 have to be awaited before making any final judgment as

Journal

European Review of Contract Lawde Gruyter

Published: Jun 1, 2014

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