Does any juristiction require all these unilateral (in any sense) TOS to be pre-reviewed and approved as “fair and clear” by a public autority? It feels so elementary to me that I’m really surprised why not everyone is demanding it as basic human right.
A new weapon in arbitration: sheer volume
161–170 of 250 posts
Re: A new weapon in arbitration: sheer volume
#162Would be poetic justice except: this is really just companies weaseling out of even THIS low level of social responsibility.
Re: A new weapon in arbitration: sheer volume
#163Re: A new weapon in arbitration: sheer volume
#164Earlier quoted context omitted.
The arbitration vendors (and lets be clear...they are vendors not a system of justice) could and probably should write this into their rules. They rely on the appearance of fairness to enable corporations to use their services against consumers/employees. If they aren't careful there is a risk of the courts increasingly observing how tipped the scales of arbitration are. The jurisprudence, to the limited extent I und…
>(and lets be clear...they are vendors not a system of justice) This is misleading, neither America nor any other country has a justice system. Justice is often a goal of the legal system but it is not a direct attribute of the system.
How would you design a Justice system then?
Re: A new weapon in arbitration: sheer volume
#165Earlier quoted context omitted.
The arbitration vendors (and lets be clear...they are vendors not a system of justice) could and probably should write this into their rules. They rely on the appearance of fairness to enable corporations to use their services against consumers/employees. If they aren't careful there is a risk of the courts increasingly observing how tipped the scales of arbitration are. The jurisprudence, to the limited extent I und…
>(and lets be clear...they are vendors not a system of justice) This is misleading, neither America nor any other country has a justice system. Justice is often a goal of the legal system but it is not a direct attribute of the system.
Most of Europe, at least, isn't bound to the letter of the law, but rather the spirit of it. I'd assume this makes them much more a justice system than the American version.
Re: A new weapon in arbitration: sheer volume
#166Stack overflow’s TOS has a binding arbitration clause, [1] despite overwhelming user feedback to the contrary. [2] Y Combinator’s TOS has an arbitration clause. [3] If you’ve created an account on HN, you’ve agreed to arbitration. [1] https://stackoverflow.com/legal/terms-of-service/public [2] https://meta.stackexchange.com/a/309756 [3] https://www.ycombinator.com/legal/
ianal and all that - but these tos are dubious. They can be ruled unconscionable, not enforceable because they are easy to miss, and being overly favored to tho company. Ignore the arbitration clauses and talk to your lawyer.
IANAL either but I do know a little about contract law because I was involved in a legal dispute involving contract law [1]. One of the fundamental principles of contract law is that for a contract to be legally binding there has to have been a "meeting of the minds" [2], i.e. the two parties have to actually have agreed to the terms of the contract. Merely publishing terms of service does not constitute a legally binding contract. Think about it: I could put ToS on my site that say, "By using this site you agree to pay me $1M." If I were to try to enforce that I guarantee you I would not prevail.
Binding arbitration clauses in ToS are there primarily to make people think that they can't sue.
[1] https://blog.rongarret.info/2011/12/cosmo-and-me-part-3-how-...
[2] https://contract-law.laws.com/contract-law/meeting-of-the-mi...
Re: A new weapon in arbitration: sheer volume
#167Earlier quoted context omitted.
Many companies require you sign a contracting to use their service (or in this case to be employed by them) that says you agree to binding arbitration
No longer binding if the company breachs the arbitration clause. They're going to be sued if the issue is real.
It seems simple enough for a binding arbitration clause to simply require the plaintiff to pay, and to tack on additional clauses to indemnify the corporate party.
Re: A new weapon in arbitration: sheer volume
#168This strategy does result in increased upfront costs for companies. But this sort pile-on strategy seems like it could be countered with arbitration agreements that aren't subject to any sort of timeline, or arbitration agreements that preclude use of automated complaint filing systems. Fundamentally, this strategy of inundating the company with claims only works because it's more expensive for the company to respond…
I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided. I mean, a big part of the original Supreme Court rulings was that the arbitration proceedings would be impartial. Having an arbitration agreement with no timeline seems like it would be more likely to be overturned.
>I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided.
One-sided bad faith terms of service have been enforced to great effect in recent years, so I can't see a one sided arbitration agreement getting any scorn or backlash from the current judicial makeup.
Re: A new weapon in arbitration: sheer volume
#169Stack overflow’s TOS has a binding arbitration clause, [1] despite overwhelming user feedback to the contrary. [2] Y Combinator’s TOS has an arbitration clause. [3] If you’ve created an account on HN, you’ve agreed to arbitration. [1] https://stackoverflow.com/legal/terms-of-service/public [2] https://meta.stackexchange.com/a/309756 [3] https://www.ycombinator.com/legal/
ianal and all that - but these tos are dubious. They can be ruled unconscionable, not enforceable because they are easy to miss, and being overly favored to tho company. Ignore the arbitration clauses and talk to your lawyer.
IAAL and banking on a court voiding a contract provision is tenuous. "adhesion contracts" in the form of website TOS, click-throughs, etc. are upheld by courts.
Re: A new weapon in arbitration: sheer volume
#170This is excellent. Forced arbitration clauses are fundamentally unfair to consumers. See this older article to understand why: https://www.nytimes.com/2015/11/02/business/dealbook/in-arbi...
Like what the hell is even happening in the US? I understand that for the international stuff it's sometimes hard to use national courts, but what's wrong when dealing with the internal? Courts aren't good enough? So maybe fix them, no? Of course, easier to make your own court where you'll have an advantage...