Determination Of The Validity Of Arbitration Clauses In Online Form Contracts

With the rapid development of network information technology and digital economy,the new contracting mode of online contracting has been created.The use of form contracts to contract online through network information has improved the efficiency of contracting and facilitated the conclusion of transactions,but has also created conflicts between the parties’ inconsistent meanings.Such online contracts usually provide for dispute resolution,including arbitration by an arbitration institution selected by the contract provider.As a common dispute resolution method,arbitration is the most basic principle of autonomy,and the use of form clauses to agree to arbitration greatly reduces the degree of consent between the parties,and due to the special nature of contracting in the network environment and the complexity of electronic information,which reduces the degree of knowledge of the contracting parties,judicial practice is divided on the validity of such arbitration clauses.In this paper,four typical cases are selected and analyzed to summarize the main controversial points in judicial practice regarding the validity of arbitration clauses in online form contracts,so as to explore the problems in determining the validity of arbitration clauses in online form contracts in depth later.Starting from the analysis of the peculiarities and elements of validity of arbitration clauses in online form contracts,this paper demonstrates the necessity and logic of studying the validity of arbitration clauses in online form contracts.In the light of the current legislative and judicial situation of online form arbitration clauses,several major problems exist in the determination of the validity of arbitration clauses in online form contracts are analyzed.First,the courts do not follow the same path in reviewing the validity of online form arbitration clauses.Some courts review the validity of online form arbitration clauses based only on the validity elements of arbitration agreements in the Arbitration Law,while some courts also review the validity elements of form clauses based on the substantive law.Second,courts are divided as to whether the review under substantive law should be on the reasonableness of the notice,the fairness of the content,or a combination of the two to evaluate the validity of online form arbitration clauses.Finally,there is a lack of uniformity in the standards for determining the reasonableness of the notice of arbitration clause and whether it is an "exclusion of rights" clause,which has led to different judgments in judicial practice.In order to improve the above problems and build a stable system of rules for determining the validity of online form arbitration clauses,the author believes that the following points can be considered: first,judicial interpretation or arbitration rules can be adopted to make up for the lack of provisions on the validity of form arbitration agreements in the arbitration law system;second,the path of reviewing the validity of online form arbitration clauses should be unified and a dual path should be adopted;third,the object of substantive review should be clarified,and the logical sequence of reviewing the appearance,presentation,clarity,timing and fairness of the content of the clause should be followed.Fourth,to clarify and refine the criteria for determining the reasonableness of the notice in five aspects: the appearance of the clause,the manner in which the clause is presented,the clarity of the expression,the timing of the notice,and the degree of the notice;Fifth,to distinguish the nature of the contract and to determine whether the form arbitration clause is an "exclusion of rights" clause.Fifth,the nature of the contract should be distinguished,and whether the form arbitration clause is an "exclusion of rights" clause should be judged.