Should we make Case 117 (You waive your right to a class action) and Case 339 (You are forced into binding arbitration in case of disputes) blockers?
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I’m surprised they aren’t blockers already :P
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I generally agree here, but I am also concerned that we create to many blockers.
Okay after taking a look, i am a bit less concerned:
There are 17 currently, three of which are thankfully very rare.
So I would say we have 14 more or less common blockers rn.
I agree with both cases becoming blockers as their are putting the service in a significantly more advantageous position over the person.
I think we should continue to watch out for not creating too many blockers and really reserve them for the worst behavior. I believe having to many might make more people give up reading terms or summaries.
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TL;DR:
Case 339 is not that bad so I don’t think it should be a blocker.
Case 117 seriously limits a user’s right to hold a company accountable for grievances, so I would tend to make it a blocker. But if arbitration is forced generally no class action can actually take place, which is an issue for assigning different categories for these cases. So I wouldn’t count it as a blocker either
Regarding Case 339 (You are forced into binding arbitration in case of disputes):
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Binding arbitration on itself is not necessarily giving a service the upper hand on a dispute. In arbitration, a neutral third party is called to make a decision in a dispute, and this decision is considered to be legally binding. It is sometimes necessary when a dispute involves technical knowledge not all judges would have, or when the procedure is preferred to be kept confidential (if it involves, for instance, sensitive data on a user or the service), or simply to save time because it is usually faster than courts.
The only situation in which a forced arbitration clause would give the upper hand to the company would be if the company sets an unfair handling of the proceedings, but that can be challenged in court if needed. -
This is an extremely common case, with currently 173 approved points linked to it. I think blockers should be used to alert on particularly unfair or dangerous practices.
So, arbitration is very common because it has some advantages, and the main issue for this case is that arbitration is imposed to the user. Since the case already has a significant weight of 50, I don’t think we should go further by turning it to a blocker.
Regarding Case 117 (You waive your right to a class action):
The right of filling a class action gives a significant power to users that collectively seek compensation for being harmed by a company. I’d say being able to challenge large companies is essential to keep some control and ensure the agreements are respected by the company. So in that respect, I’d agree making the waiver a blocker. Yet, some points need to be mentioned first.
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It is worth to notice that, while it is also an extremely common case (195 approved points), it seems its enforceability is blocked in some countries, outside of the USA (such as in France). However, ToS;DR policy is generally to consider in reviews the worst jurisdiction ie the one giving the less rights to users. So turning this to a blocker might create a warning for an issue some users aren’t affected by.
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Mass arbitration can be a way to circumvent class action waivers, in order to still have a collective impact on a company harming users in a similar way. As such, the impact of a class action waiver can be offset by this method.
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For what I’ve read, few class actions can be held within the scope of arbitration. So if case 117 is considered a blocker, case 339 might need then be a blocker too…
Given these points, I’d say case 117 might finally not be a good blocker. Perhaps we would increase its weight to raise awareness on its implications, though.
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Thank you for taking a deeper look and the bigger insight!
The problem with arbitration that I know is, that the arbitrator usually gets decided and paid by the company, making it beneficial for the arbitrator to side with the service.
This I find a really interesting point, because, while yes, for some jurisdictions it doesn’t matter (I believe most of Europe) but for others its even more important IMO. This whole different jurisdictions, different ToS is really annoying.
Can you elaborate on that, I don’t understand ;D
(As far as I am aware weight is unused right now)
I read about that, Valve has been doing an interesting 180 turn because of that, updating their ToS for all users to remove arbitration to avoid having to pay a lot of money.
I think I agree with Agnes on 339, and for 117 I didn’t understand the argument for why it shouldn’t be a blocker after all
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Agreed. The choice of the arbitrator is supposed to be neutral, unfortunately it makes easy for a company to bias decisions.
What I meant is that if you are forced into binding arbitration, you technically can’t go to court, hence you can’t take part in a class action lawsuit. This would mean Case 339 implies case 117. So if we turn 117 to a blocker, Case 339 would imply a blocker and thus should be a blocker too.
However, by deepening the topic, I’ve discovered the existence of class action arbitration (like a class action lawsuit, but in arbitration) which seems to be rare but still makes it possible to take collective action despite forced arbitration.
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I feel like blocking you from going to court is inherently bad as it means that the public cannot see what happened behind closed doors.
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I am not sure how much that matters considering most cases end in settlements
“According to the most recently-available statistics, about 95 percent of pending lawsuits end in a pre-trial settlement.” https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/
For which the terms are usually also private.
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I thought that there was a separate case for services were you have a certain time to opt-out. I think we should make a separate case for that, which is weighted not as bad as this one
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Wether any specific points in the ToS actually affects a tosdr user should be up for the user to investigate. It would take a very large amount of resources to keep an updated database of which countries allow binding arbitration, considering legal precendents and language-barriers.
tosdr should focus on summarizing the intent of the ToS policies. Any company that tries to force binding arbitration on its users clearly wants a biased, private trial. Making case 339 a blocker would also help highlight how far any given company is willing to go to bend the rules in their favor.
Agreed. You have to consider that intent changes depending on what the clause actually does in your jurisdiction.
You can’t assume that this is the intent as it heavily depends on your nation’s laws regarding “forced” arbitration, when you, as a company, know how week such clause is:
I have such a clause in most of my B2B contracts and the reason is that at the second a court of law is involved everything gets expensive and I mean thousands of EUR, just to get a competent ruling over a single paragraph in the contract.
Depending on your national laws to even defend against a suit you are legally obligated to have and pay a lawyer, because only they are allowed to communicate with the court for certain topics. Where in an arbitration you can attend by yourself.
In my case that clause actually always struck in the other direction when I require an external ruling over a contract violation by my customers.
However in our country I’m allowed to start a regular law suit after offering a list of arbitrators (there is a public list of arbitrators in our country) for selection and wait for a custom period of time.
Then I can proof to the regular court that I attempted the arbitration, but it failed.
The only thing “enforced” is that I have to attempt an arbitration first.
Waiting three weeks is not a blocker in my opinion and offering a cheaper (and effectively optional) alternative than going to the regular courts is not an intend to bend the rules.
If I wouldn’t offer arbitration on the other hand I’m forcing the customer to make a proper (and expensive) law suit against me as their only means to get a ruling against me.
And no, my intend isn’t a favourable ruling: That would - at most - backfire at the commercial court where arbitrations are held, since I’m a small company and my customers are huge companies; but I trust our commercial court to be as neutral as the proper courts.
If I have an “ulterior” motive it is that the invitation to the commercial court sometimes rekindles proper negotiations, when the customer recognises that I won’t just bend over. As said, most of the time I’m in the weaker position.
My intend is to have a legally trained third party hopefully better explaining to my customers and me how the current laws and our current contract are influencing each other and what options are there to move forward.
If anyone is unhappy with the arbitration both sides can fail it and move to the regular court.
I’m not a law firm, my contracts contain outdated clauses all the time, since laws change all the time (and my contracts are usually long-term). Sometimes even I don’t know how you have to interpret an old clause currently.
This is why I’m not sure about the severity. Blocker seems too harsh, since even the intend of putting such a clause in a contract depends on the legislature of the nation the company has its headquarter in. As is in my case: Offer a cheaper alternative, which wouldn’t be an option if I didn’t put in such a clause.
That said I, of course, understand where you are coming from when you have such a clause f.e. in an US-based company.
I’m not sure how to resolve this huge difference from the same clause being something arguably positive (as in my case) to something devastatingly wrong (as in the case of the same concept applied to a US-company).
I know that the proper term in my case would be “forced mediation” as differentiation to “forced arbitration”, but that easily gets lost in translation, has a couple of asterisks attached as an mediation might lead to an arbitration (look up Med-Arb proceedings) and might be too much for any reviewer to pick apart.
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