Arbitration Clauses in Agreements Involving Consumers

Abstract

Imperative provisions of Article 17 of the Law on the Protection of Consumer Rights of theRussian Federation and Article 29 of the Civil Procedure Code of the Russian Federationprovide the consumer with an option to file a lawsuit in court (at the location of therespondent organization, at his place of residence or at the place of residence, or at theplace of conclusion, or execution of the contract), despite the existence of a valid andenforceable choice of court consumer agreements. At the same time these provisions donot stipulate the question of whether the consumer has a similar opportunity if there is anarbitration clause in the agreement. The lack of the special rules governing the validity ofarbitration clauses with the participation of consumers in federal legislation led to a widerange of solutions to this issue in judicial practice, from the admissibility of incorporatingan arbitration clause in consumer agreements to the impossibility of considering thesedisputes by arbitration courts. The author critically evaluates the doctrinal positions onthe unacceptability of incorporating an arbitration clause in consumer agreements dueto the 2012 position of the Constitutional Court of the Russian Federation regarding thepossibility of choosing an alternative form of protection of rights by parties to a consumeragreement, Article 11 of the Civil Procedure Code, which allows to choose forms ofprotection of civil rights by applying to a court, arbitration court or arbitration court, as wellas provided for in Articles 45, 46 of the Constitution guarantees. At the same time, with thegeneral arbitrability of consumer disputes, the author justifies the need to establish specialrequirements for the validity of after the dispute arises. In connection with the absence inRussian legislation of special conditions for the validity of the arbitration agreement withthe participation of the consumer, the author explores the possibility of evaluation of thearbitration agreement based on the more substantive provisions provided for in Article428 of the Civil Code.
For citation: Terenteva L.V. (2020) Arbitration Clauses in Agreements Involving Consumers. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 2, pp. 28–44 (in Russian) DOI: 10.17323/2072-8166.2020.2.28.44