Arbitration Clauses in Agreements Involving Consumers

Abstract

Imperative provisions of Article 17 of the Law on the Protection of Consumer Rights of the Russian Federation and Article 29 of the Civil Procedure Code of the Russian Federation provide the consumer with an option to file a lawsuit in court (at the location of the respondent organization, at his place of residence or at the place of residence, or at the place of conclusion, or execution of the contract), despite the existence of a valid and enforceable choice of court consumer agreements. At the same time these provisions do not stipulate the question of whether the consumer has a similar opportunity if there is an arbitration clause in the agreement. The lack of the special rules governing the validity of arbitration clauses with the participation of consumers in federal legislation led to a wide range of solutions to this issue in judicial practice, from the admissibility of incorporating an arbitration clause in consumer agreements to the impossibility of considering these disputes by arbitration courts. The author critically evaluates the doctrinal positions on the unacceptability of incorporating an arbitration clause in consumer agreements due to the 2012 position of the Constitutional Court of the Russian Federation regarding the possibility of choosing an alternative form of protection of rights by parties to a consumer agreement, Article 11 of the Civil Procedure Code, which allows to choose forms of protection of civil rights by applying to a court, arbitration court or arbitration court, as well as provided for in Articles 45, 46 of the Constitution guarantees. At the same time, with the general arbitrability of consumer disputes, the author justifies the need to establish special requirements for the validity of after the dispute arises. In connection with the absence in Russian legislation of special conditions for the validity of the arbitration agreement with the participation of the consumer, the author explores the possibility of evaluation of the arbitration agreement based on the more substantive provisions provided for in Article 428 of the Civil Code.