Unfair arbitration clause before the ECJ

by Caroline Kleiner on November 1, 2009

In a recent decision of October 6, 2009 (C 40/08 – Asturcom Telecomunicaciones SL v. Maria Cristina Rodríguez Nogueira) the European Court of Justice held that  a national court or tribunal hearing an action for enforcement of an arbitration award which has become final and was made in the absence of the consumer is required to assess of its own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair.

As in the  Elisa María Mostaza Claro v. Centro Móvil Milenium SL (C-168-05) case, the dispute arose from a subscription contract for a mobile telephone concluded between Asturcom and Mrs Rodríguez Nogueira. The contract contained an arbitration clause under which any dispute concerning the performance of the contract was to be referred for arbitration to the Asociación Europea de Arbitraje de Derecho y Equidad (European Association of Arbitration in Law and Equity) (‘AEADE’). The seat of that arbitration tribunal, which was not indicated in the contact, was located in Bilbao.

An arbitral award condemned Mrs Rodríguez Nogueira to pay  EUR 669,60 to Asturcom. The consumer neither participated into the arbitral proceedings nor did she intend to get the annulment of the award, as permitted by the Spanish Arbitration Law.

Asturcom brought an action before the Juzgado de Primera Instancia No 4 de Bilbao for enforcement of the  award.

First, the Spanish Court of First Instance rules that the arbitration clause contained in the subscription contract is unfair. However, the Spanish Law on Arbitration does not allow the arbitrators to examine of their own motion whether unfair arbitration clauses are void and secondly, the Spanish Code of Civil Procedure (Ley 1/2000 de Enjuiciamiento Civil) does not contain any provision dealing with the assessment to be carried by the court or tribunal having jurisdiction as to whether arbitration clauses are unfair when adjudicating on an action for enforcement of an arbitration award that has become final.

In those circumstances, the Juzgado de Primera Instancia decided to stay the proceedings and to refer to the Court the following question for a preliminary ruling:

“In order that the protection given to consumers by [Directive 93/13] should be guaranteed, is it necessary for the court hearing an action for enforcement of a final arbitration award, made in the absence of the consumer, to determine of its own motion whether the arbitration agreement is void and, accordingly, to annul the award if it finds that the arbitration agreement contains an unfair arbitration clause that is to the detriment of the consumer?”

The ECJ held that national courts having jurisdiction for the enforcement of arbitral awards made in the absence of the consumer are “required to assess of their own motion whether an arbitration clause in a contract concluded between a seller or supplier and a consumer is unfair, in so far as, under national rules of procedure, they can carry out such an assessment in similar actions of a domestic nature.

If that is the case, it is for that court or tribunal to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that clause”.

In my opinion, the decision is written in a misleading way.

In the first place, it seems to mean that national courts having jurisdiction over the enforcement of arbitral awards should on their own motion raise the nullity of the arbitration clause on the basis of Directive 93/13.

However, they should do so only where their national procedural laws (“in similar actions of a domestic nature ) authorize them to do so. Which means that in this case (if I understand well), as the provisions on the enforcement of domestic awards of the Spanish Code of Civil Procedure are silent on this matter, Spanish judges are not required to raise on their own motion the unfair arbitration clause… But what should we understand by “in similar actions of a domestic nature“? It is quite clear that the ECJ excludes the procedure of the enforcement of international awards from its ambit. But what are these provisions that national judges should look at???

If anyone has a clue on this…

{ 2 comments }

Philip Smith November 2, 2009 at 12:05 am

As I understand it, the key paragraphs of the judgment are 52 and 53:

“52. … Article 6 of the directive must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy.

“53. It follows from this that, inasmuch as the national court or tribunal seised of an action for enforcement of a final arbitration award is required, in accordance with domestic rules of procedure, to assess of its own motion whether an arbitration clause is in conflict with domestic rules of public policy, it is also obliged to assess of its own motion whether that clause is unfair in the light of Article 6 of that directive, where it has available to it the legal and factual elements necessary for that task … .”

This means that, if the court can of its own motion apply national rules of public policy, it must also apply Article 6 in the same way (subject to the constraint that the court has evidence before it on which it can determine the point, or can require such evidence to be submitted).

The Spanish Code of Civil Procedure may be silent on the matter, but paragraph 55 of the judgment states that “[a Spanish] court or tribunal responsible for enforcement of an arbitration award which has become final has jurisdiction to assess of its own motion whether an arbitration clause in a contract concluded between a consumer and a seller or supplier is null and void on the ground that such a clause is contrary to national rules of public policy. Moreover, a number of recent judgments of the Audiencia Provincial de Madrid and the Audiencia Nacional have acknowledged that jurisdiction.”

The reference to “similar actions of a domestic nature” is confusing: I would have thought that this case was domestic, since as far as I can tell no aspect of the case is foreign to Spain. Presumably the ECJ mean an action in which national rules of public policy are engaged, but rules of EU law are not.

Zdenek Novy November 14, 2009 at 4:56 pm

It seems obvious to me that the protection of consumers against unfair arbitration clauses requires that there being competence of the court, which is asked to enforce arbitration award, to stop that enforcement if the arbitration proceedings were based upon unfair arbitration clause. Otherwise, the aim of the Directive on Unfair Terms in Consumer Contracts will be seriously compromised.

Therefore, I agree with the conclusions of the GA in this case.

Also, it is interesting that the ECJ´s defends the principle of res judicata in the Asturcom case, whilst it sacrificed it in other cases.

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