• Title/Summary/Keyword: 비양심적 중재조항

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The U.S. Contract Law Defenses in Consumer Arbitration Agreement (소비자중재합의의 미국계약법상 항변)

  • Ha, Choong-Lyong
    • Journal of Arbitration Studies
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    • v.20 no.2
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    • pp.151-171
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    • 2010
  • This paper investigates the consumer arbitration practices In the U.S. The key issue in consumer arbitration is how to protect the individual consumers from the loss of their legal rights stemming from the arbitration agreement with the business. In the U.S., the major legal doctrines to protect individual consumer include the voluntary-knowing-intelligent doctrine, unconscionability doctrine, and void contract. Even though the US courts are favorable to the enforceability of arbitration agreement, they strictly apply the contract law theories in deciding the existence of arbitration agreement, providing a strong common law protection for the consumers in arbitration. However, the practices for protection of consumers in arbitration in Korea are not mature yet. If consumer arbitration is widely adopted into B to C contracts, a protective measure for individual consumer can be found in the Act of Clause Regulation providing that the business has duty to explain the relevant clause in the adhesive contracts.

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Review of U.S. Courts' Procedural and Substantive Unconscionability Doctrine Regarding Mandatory Arbitration Agreement in the Nursing Home Contracts (미국 요양원 입소계약상의 강제적 중재 조항에 관한 미국 법원의 절차적, 실체적 비양심성 법리 고찰)

  • Shin, Seungnam
    • Journal of Arbitration Studies
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    • v.31 no.1
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    • pp.83-105
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    • 2021
  • If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts will enforce arbitration agreements. Additionally, U.S. courts weigh a variety of factors to determine whether an arbitration agreement is substantively unconscionable. For example, U.S. courts have considered one or a combination of the following factors: (1) the fairness of contractual terms; (2) the severity of contractual terms' deviation from prevailing standards, customs, or practices within a particular industry; (3) the reasonableness of goods-and-services contract prices; (4) the commercial reasonableness of the contract terms; (5) the purpose and effect of the terms and (6) "the allocation of risks between the parties." Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hidden in a mass of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pressure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agreement.