Party Autonomy and Consumer Arbitration in Conflict: A “Trojan Horse” in the Access to Justice in the E.U. ADR-Directive 2013/11?

Arbitration clauses in consumer contracts have been subject to controversy in many jurisdictions; recent U.S. and Canadian Supreme Court case law have been used as examples. European Union (E.U.) law, which originally excluded arbitration in general from the Brussels/Rome regimes, has recently taken a mixed, and to some extent limited, approach by including Alternative Dispute Resolution (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 E.U. Member States as a second route to justice. It is too early to evaluate this new and somewhat clandestine policy of the E.U. The paper insists on some additional procedural guarantees should consumer arbitration schemes become more popular among Member countries, even though Dir.

2013/11 already contains some “minimum protection” provisions on “specific acceptance” and applicable law. The basic reference for such additional protection is in Article 47 of the E.U. Charter of Fundamental Rights, viewed together with Article 19(1) para. 2 of the Treaty on the European Union (TEU) whereby “Member States shall “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”. At the time of writing, the implementation measures of Member States concerning Dir. 2013/11 have to be awaited before making any final judgment as to their conformity with E.U. law and efficiency.

The paper seeks to provide some guidelines for this coming debate.