12) Zdenek Novy  [INS: :INS]

Arbitration Clause as Unfair Contract Term from the perspective of Czech and EC Law[INS: :INS]

The conflict between EU consumer protection provided for by the Directive on unfair terms in
consumer contracts and principles of arbitration came to a head in the ECJ's Claro case. This case
has shown that the arbitration clause may be an unfair contract term par excellence. I use this
case as a point of departure for the considerations on unfairness of arbitration clause in
contracts between businesses and consumers. Consequently, I draw a parallel between the Claro case
and the lasting contractual practice in the Czech Republic where the arbitration clauses
incorporated in standard form contracts between businesses and consumers are in many instances
unfair. Their unfairness stems from the fact that arbitration clauses refer to arbitrators ad hoc
who are unilaterally appointed and paid by businesses. Since standard form contracts are proffered
by businesses, consumers are not given an opportunity to negotiate about the contract. This state
of affairs in the Czech Republic is at variance with the Directive on unfair contract terms as well
as the ECJ's case law which provides its interpretation.
From the structural viewpoint, first I am going to briefly [INS: provide information :INS] [DEL:
inform :DEL] about the consumer protection provided by the Directive. Subsequently, I deal with the
ECJ's cases having an importance for further considerations regarding [INS: the :INS] unfair nature
of arbitration clauses while putting particular emphasis on the ECJ's Claro case. Then, I aim to
show that the Directive has not been correctly implemented into Czech Law. As a next step, I would
like to offer a possible solution for this unsatisfactory situation in the Czech Republic with the
help of comparative insight into legal orders of the Member States. Finally, the development of the
view on arbitration clauses as unfair contract terms in the EU is [INS: considered. :INS] [DEL:
reflected :DEL] .
[INS: :INS]