Friday, June 21, 2013

Should the Arbitration Clause be Given a Mythological Status?

Developments in the last few decades, including the very recent ones in the USA (see in American Express Co. v. Italian Colors Restaurant and preliminary comments here and here), have accorded a near-mythological status, so much that arbitration clauses have been enforced when the effect of the same clearly promoted anti-competitive and anti-consumer behaviour. As compared to such developments, the Indian legal system, with all its faults, provides adequate remedies for the party with weak bargaining power. For instance, a consumer can opt either to arbitrate or to approach the consumer fora when a binding arbitration clause exists in the consumer contract. The question, at the end of the day, is whether arbitration  as a process and the arbitration clause really deserves the place it is given.

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