Fairness in arbitration has always been a cornerstone concern. Given the spread of arbitration and its defining feature being the removal of a dispute from the jurisdiction of national courts, it is important to determine what is fair. In her article, entitled “Rawlsian Fairness and International Arbitration,” Diane Desierto gives the concept of fairness specific parameters by applying John Rawls’s famous “Justice as Fairness” model to international arbitration. In particular, she identifies the four predominant critiques of unfairness in international arbitration, and seeks to use John Rawls’s theory as criteria for the distribution of any inequalities resulting from an arbitration agreement to “examine the actual potency” of those critiques in the context of international commercial and investment arbitration.01Diane A. Desierto, Rawlsian Fairness and International Arbitration, 36
Part I: Rawlsian Fairness And Arbitration
In the Rawlsian model, the objective of procedural justice is designing a process that leads to a just result.02
[In the original position] the person choosing has a conception of the good such that he cares very little, if any-thing, for what he might gain above the minimum stipend that he can, in fact, be sure of by following the maximin rule. It is not worthwhile for him to take a chance for the sake of a further advantage, especially when it may turn out that he loses much that is important to him.04
Rawls, supra, at 134.
With this starting point, Rawls argues that the parties would agree on two basic principles of justice:
1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberties for all.
2. Social and economic liberties are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.05
Rawls, supra. at 266.
In the Rawlsian model, the extent to which the rules of arbitration reflect the two principles of justice arrived at behind a veil of ignorance establishes the level of fairness that those rules represent.
The second stage of the mental exercise involves lifting the veil of ignorance and introducing into the design process those attributes and characteristics that were ignored in the original position. In other words, once the two fundamental principles are established, the parties are provided with the relevant information about one another that will allow them to tailor the rules of their interaction to their particular circumstances. The process begins with the design of the legal system as a whole. As the architects obtain more information about society, they will begin to supplement the regime by adding complementary legal rules, such as substantive and procedural regimes for alternative dispute resolution. The crucial feature of these supplementary provisions is that while they enhance the existing legal regime, that regime remains the baseline for the fairness of those additional features. There is therefore a common thread of fairness that runs from the arbitration regime, back to the original position and the two Rawlsian principles, even as the attributes that were ignored behind the veil of ignorance become introduced and balanced against those principles. Wardaugh gives the example of a society’s constitution being the first social agreement that reflects the two principles of justice and is therefore unlikely to fall below them, then posits that the “Rawlsian legal architects designing ADR provisions to supplement existing procedural institutions (and their rules) would use what exists as a baseline for the fairness.”06Bruce Wardaugh, Unveiling Fairness for the Consumer: The Law, Economics and Justice of Expanded Arbitration, 26
The kind of arbitration regime that private parties are able to arrange for themselves is necessarily constrained by the same thread of fairness that runs from the two principles of justice and through the constitution. Notwithstanding the fact that the parties are given the freedom to design some aspects of the arbitration process, such as choosing arbitrators and the place of arbitration, those aspects are still a supplementary part of the legal regime designed by the Rawlsian architects. In other words, although they are given leave to take their respective attributes into account, they cannot entirely contract away the fundamental principles of justice that bind the legal regime. This is recognised by tribunals in the existence of mandatory due process principles in an arbitration.07See generally
Part 2: Consumer Arbitration
Consumer arbitration takes place when a company (often a service provider) places in its standard terms and conditions a mandatory arbitration clause that causes any consumer who signs the document to be subject to arbitration rather than have recourse to courts if he or she wishes to make a claim against the company under that contract. Consumer arbitration clauses often require consumers to exclude claims for certain types of damages,12See, e.g., Marmet Health Care Ctr. Inc. v. Clayton Brown, 132 S. Ct. 1201 (2012). forego the ability to sue in a class action,13See, e.g., AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). agree to limited discovery,14See, e.g., Hooters of America Inc. v. Phillips, 39 F. Supp. 2d 582, 614, 618 (D. S.C. 1998). and permit the business to choose the place of arbitration and the identity of the arbiter.15The location of arbitration may be prohibitively far from the consumer’s place of residence. The United States has adopted a highly permissive approach to consumer arbitration. The Supreme Court has expanded the scope of the Federal Arbitration Act from governing disputes between commercial parties to a method of resolving disputes between businesses and consumers. This encouraged the spread of mandatory consumer arbitration clauses, which today can be found in contracts for cellular phones, pay day loan providers, nursing homes, and employment matters. A recent study showed that thirty-three percent of consumer transactions are governed by contracts that mandate arbitration.16Linda J. Demaine & Deborah R. Hensler, ‘Volunteering’ to Arbitrate Through Predispute Arbitration Clauses: The Average Consumer’s Experience, 67
The justification offered by the Supreme Court is that an arbitration clause is a contractual matter and therefore should be enforced according to its terms.17Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2772, 2776 (2010). In AT&T Mobility LLC v. Concepcion, the Supreme Court reasoned that the “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms,”18AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1752 (2011). and that expanding the role of arbitration to consumer disputes is justified on the grounds of party autonomy and efficiency.19Id. In 2013, the Supreme Court ruled in favour of the enforceability of arbitration clauses that excluded class arbitration even though the costs of individual arbitration in the case would exceed potential recovery.20American Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013). Given the permissiveness of the current laws and the fact that mandatory arbitration clauses are encouraged in the business community as prudent business practice,21Jean A. Sternlight & Elizabeth J. Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, 67
Reservations as to mandatory consumer arbitration, both in Europe and on the part of the promoters of the Arbitration Fairness Act of 2013,30Id. are primarily concerned with the unfairness of such clauses. The 200731Arbitration Fairness Act of 2007, H.R. 3010, 110th Cong. (2007). and 200932Arbitration Fairness Act of 2009, H.R. 1020, 111th Cong. (2009). Acts have drawn criticism in the fact that “[m]any corporations add to their arbitration clauses unfair provisions that deliberately tilt the systems against individuals, including provisions that strip individuals of substantive statutory rights, ban class actions, and force people to arbitrate their claims hundreds of miles from their homes.” The Arbitration Fairness Act of 2013 emphasises that the unfairness is exacerbated because “[m]ost consumers and employees have little or no meaningful choice whether to submit their claims to arbitration” as typically they “are not even aware that they have given up their rights.”33Arbitration Fairness Act of 2013, § 2. Further, people “increasingly have no choice but to accept the clauses [. . .] as a condition of having a job, getting necessary medical care, buying a car, opening a bank account, getting a credit card, and the like.”34Arbitration Fairness Act of 2007, § 2. These congressional statements are not vague assertions of unfairness, but rather they allude specifically to the model of fairness found in Rawls’s “Justice as Fairness” model by pointing to the asymmetry in the rights of the consumer and the business when it comes to mandatory arbitration clauses.
Part 3: Consumer Arbitration and Fairness
Desierto identifies strong expectations of transparency35Desierto, supra, at 962. and more extensive discovery procedures36Id. as the main roots of claims of procedural unfairness against international arbitration proceedings. In the context of consumer arbitration, another important source of unfairness is the elimination of class actions and punitive damages. In her paper, Desierto uses the Rawlsian “Justice as Fairness” model as “criteria for parties seeking to reach agreement and distribute any inequalities resulting from such agreement,”37Desierto, supra, at 955. and she seeks to measure the fairness of the critiques of unfairness to international arbitration with reference to the model.38Desierto, supra, at 955. In this section, I will apply her approach and test the fairness of the three critiques of mandatory consumer arbitration discussed above. The application of the Rawlsian model to consumer arbitration necessarily begins with differentiating the “original positions” of the parties to a consumer arbitration and applying the two fundamental principles of fairness. Desierto points out that the original positions will not be the same for parties in an international commercial and investor arbitration,39Id. at 963. and so the original positions of parties in a mandatory consumer arbitration will likewise have their own set of unique characteristics.
Part 3(a): The First Principle – An Equal Footing
Applying the First Principle, Desierto posits that parties in a commercial arbitration “possess equal basic liberties in the bargaining process, as seen from the governing principles of party autonomy and freedom to consent in arbitration.”40Id. at 964. She contrasts this with investment arbitration where, although the home and host States can be presumed to negotiate arbitral clauses in investment treaties on an equal footing, “the types of negotiation leverage [. . .] employed are hardly the same for capital-importing States as for capital-exporting States.”41Id. at 966. Furthermore, in arbitrations based on investment treaties, investors are not part of the bargaining process to begin with and are simply presented with the treaty as it is, unable to negotiate clauses.42Id. There are significant parallels between those features of investment arbitration that limit the First Principle and consumer arbitration. First, consumers are not on an equal footing to bargain with the contracting companies. Second, the consumer is most often faced with a “take it or leave it” situation regarding the acceptance of the arbitration clause and the underlying contract, unable to negotiate it out of the agreement with the company.
Service contracts that contain arbitration clauses are often contracts for services that are essential to functioning in modern society. The arbitration clauses are contained in the terms and conditions drafted by the companies and simply presented to the consumer, with no recourse for the latter to negotiate for the exclusion of such clauses. Like an investor operating under a bilateral investment treaty, the consumer is simply presented with the arbitration clause contained in the contract. Although the consumer is free to reject the contract in a way that the investor cannot reject a bilateral investment treaty, the choice to reject the contract with the service provider is constrained by the fact that the service provided is often one of practical necessity. This is exacerbated by the fact that, although the consumer technically consents to arbitration by signing the agreement, in most cases he or she is unaware of the existence of an arbitration clause due to a failure to read the lengthy terms and conditions. The arbitration clause is unilaterally drafted and presented by a highly sophisticated party to an unsophisticated consumer. Often, the consumer either fails to understand the effect of the clause until a dispute arises, or more commonly, the consumer does not even know that the clause exists in the first place. The unequal footing of the two parties at the start of an arbitration, wherein one party unilaterally prepares the process while the other must simply remain subject to it, creates a prima facie unfairness in consumer arbitration that is only exacerbated when further conditions, such as confidentiality or waiver of class actions, are introduced.
Part 3(b): The Second Principle – An Equitable Distribution
The Second Principle posits that the inequalities inherent in the parties’ respective attributes must be allocated in a way that is advantageous to all interested parties. Therefore, wherever there is an imbalance in the advantages and disadvantages borne by the parties to an arbitration, there will be a prima facie unfairness resulting from such a distribution. While identifying the reason for an unfairness, the Second Principle also suggests a solution to the imbalances by providing that any disadvantages should be allocated away from the most disadvantaged party. Providing solutions to the unfairness identified is outside of the scope of this paper. In short, this can be done either by the tribunal itself in arbitration or, if that is unlikely or impossible, by providing that a certain disadvantage cannot be introduced into a consumer arbitration clause.
Part 3(b)(i): Transparency Discovery
Even though the agreement to arbitrate is made between two parties, the rights of third parties must also be taken into account in consumer arbitration because of the nature of the circumstances in which the dispute is likely to arise. In commercial arbitration, contracts are bargained for and made between two commercial parties and usually, only those two parties are likely to have an interest in the outcome of the arbitration. In an investment arbitration, however, Desierto properly observes that the interests involved are not limited to those of investor and host State, but encompass the public of the host State as well.43Desierto, supra, at 968. In a consumer arbitration, the contract signed by a consumer with the company in question is likely to be on the same terms as thousands of other contracts for the same service. In other words, when an issue arises under one contract, it will be governed by the same set of substantive rules and contractual provisions when it arises under the other contracts, as well. There is an inherent interest of all consumers who have signed that contract to be treated the same and to know how similar issues have been dealt with. This cannot happen if the dispute resolution process is opaque. The signatory to the contract in dispute is at a disadvantage: He does not know how the provision in the contract has been treated by the company in the past, nor does he have any recourse to find out whether he is being treated similarly to other consumers, as the preceding arbitrations are confidential. Furthermore, all consumers are disadvantaged as a class for similar reasons. At the same time, the company in question has two key advantages:
(1) keeping the disputes confidential and out of the public eye, where revealing the problems may harm its reputation and
(2) having the option of treating the consumers differently each time a dispute arises, thereby avoiding precedents which may drive the awards higher.
This is a notable imbalance which, on the Rawlsian analysis, strikes at the Second Principle.
Part 3(b(ii): Discovery
Limitations on discovery found in many consumer contracts also exacerbate the imbalance in the parties’ respective positions and serve to distribute the disadvantages not away from the weaker party, but in favour of the drafter of the contract. In large commercial arbitrations, the asymmetries of information or resources between the parties are less likely to be present. Since both are commercial entities, the parties will have sufficient awareness of the content and context of the contract, as well as adequate resources to make investigations for the claim at hand. At the start of a dispute resolution process, the consumer is in a weaker position due to having limited access to information about the company he or she is suing, as well as less resources to pursue a claim than the company. This lack of information and resources can make it extremely difficult, if not at times impossible, to pursue a valid claim against the company. For example, in Kinney v. United Health Care Services,44Kinney v. United Healthcare Services, 70 Cal. App. 4th 1322 (1999) (cited by Wardaugh, supra, at 447.). the California Court of Appeals observed that “[t]he unconscionable nature of the unilateral arbitral obligation is heightened [. . .] [g]iven that United is presumably in possession of the vast majority of evidence that would be relevant to employment-related claims against it.”45Id. Therefore, although the limited discovery is applicable to both parties, the effect of it is borne most strenuously by the consumer as it curtails the consumer’s ability as a claimant to substantiate a claim.46Id. At the same time, the company has the advantage of resisting the claimant’s efforts to obtain information essential to make his or her case, as well as avoiding the costs of discovery in general. Although the latter advantage can be construed as an indirect advantage for the consumer, it does not outweigh the hardship of limited discovery overall. The advantages and disadvantages are distributed inequitably between the parties and as in the case of transparency, the result with regard to the Second Principle is notably unfair.
Part 3(b)(iii): Elimination of Class Actions
Another way that advantages are shifted away from the weaker party and towards the stronger party is through the elimination of class actions in arbitration clauses, which furthers the imbalance under the Second Principle. Often, consumer claims are for low amounts of money and in many cases, the transaction and opportunity costs of pursuing a claim outweigh the value of that claim for the average consumer. This is exacerbated when no costs are awarded to the loser under the American “user-pays” cost system. In these cases, it becomes irrational to pursue claims against the company, and as a result, many individual claims are never brought. The class action procedure is designed to address this particular concern by allowing the claimants to pool their resources and lower the transaction and opportunity costs involved in bringing the claim to a level where an economically rational individual would pursue the dispute. In Concepcion, Justice Breyer pointed out that “agreements that forbid the consolidation of claims can lead small dollar claimants to abandon their claims rather than to litigate.”47Concepcion, 131 S. Ct. at 1760 (Breyer, J., dissenting) (cited in Wardaugh, supra, at 444.). Furthermore, the strategy of making the pursuit of claims “a fool’s errand” is taken further by increasing the cost of making a claim.48American Express, 133 S. Ct. at 2313 (2013) (cited in Wardaugh, supra, at 446.). A notable way of doing this is implementing an arbitration process that requires consumers to incur costs at the outset, whether in the form of filing or other fees, such as hiring an arbitrator or traveling to a particular location. In a class action, where these costs are borne by the promoters, the claimants remain undeterred from bringing their action. Companies benefit from eliminating class actions by effectively protecting themselves from the significant damages which would otherwise result from the deterred claims being more-fully pursued. Through the Rawlsian lens, this is an unfairness in the distribution of advantages and disadvantages, since the latter are significantly tipped against the interests of the consumer, while the former go mostly to the company.
Part 4: Conclusion
Desierto’s approach to analysing critiques of fairness in arbitration is an illuminating way to look at and organize issues that are often dealt with in a nebulous manner. “Unfairness” is often asserted, but capturing the exact delineation of the term can be difficult without a framework. Rawls’s “Justice as Fairness” model provides that framework and fits well in the context of arbitration in general. Desierto’s approach to implementing the model is applicable not only to commercial and investor arbitration, as shown in the article, but it has relevance to other types of arbitration as well. When applied to consumer arbitration, it is a useful roadmap that helps to highlight what exactly is “unfair” among the various features found in mandatory arbitration clauses in consumer contracts.
References [ + ]
|01.||↵||Diane A. Desierto, Rawlsian Fairness and International Arbitration, 36 |
|03.||↵||Rawls, supra, at 85.|
|06.||↵||Bruce Wardaugh, Unveiling Fairness for the Consumer: The Law, Economics and Justice of Expanded Arbitration, 26 |
|07.||↵||See generally |
|08.||↵||See Richard W. Naimark & Stephanie E. Keer, International Private Commercial Arbitration: Expectations and Perceptions of Attorneys and Business People, 30 |
|09.||↵||Naimark and Keer, supra, at 205.|
|12.||↵||See, e.g., Marmet Health Care Ctr. Inc. v. Clayton Brown, 132 S. Ct. 1201 (2012).|
|13.||↵||See, e.g., AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).|
|14.||↵||See, e.g., Hooters of America Inc. v. Phillips, 39 F. Supp. 2d 582, 614, 618 (D. S.C. 1998).|
|15.||↵||The location of arbitration may be prohibitively far from the consumer’s place of residence.|
|16.||↵||Linda J. Demaine & Deborah R. Hensler, ‘Volunteering’ to Arbitrate Through Predispute Arbitration Clauses: The Average Consumer’s Experience, 67 |
|17.||↵||Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2772, 2776 (2010).|
|18.||↵||AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1752 (2011).|
|20.||↵||American Express Co. v. Italian Colors Rest., 133 S. Ct. 2304 (2013).|
|21.||↵||Jean A. Sternlight & Elizabeth J. Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, 67 |
|22.||↵||See, e.g., Popovich v. McDonald’s Corp., 189 F. Supp. 2d 722 (N.D. Ill. 2002).|
|23.||↵||See, e.g., Marmet Health Care Ctr. Inc. v. Clayton Brown, 132 S. Ct. 1201 (2012).|
|24.||↵||See, e.g., Lucas v. Hertz Corp., 875 F. Supp. 2d 991, 1007–08 (N.D. Cal. 2012).|
|25.||↵||See, e.g., Concepcion, 131 S. Ct. at note 13.|
|26.||↵||Council Directive 93/13/EEC, 1993 O.J. (L 95) 29.|
|27.||↵||Council Directive 93/13/EEC, art. 3.|
|28.||↵||Council Directive 93/13/EEC, art. 6.|
|29.||↵||Arbitration Fairness Act of 2013, H.R. 1844, 113 Cong. (2013).|
|31.||↵||Arbitration Fairness Act of 2007, H.R. 3010, 110th Cong. (2007).|
|32.||↵||Arbitration Fairness Act of 2009, H.R. 1020, 111th Cong. (2009).|
|33.||↵||Arbitration Fairness Act of 2013, § 2.|
|34.||↵||Arbitration Fairness Act of 2007, § 2.|
|35.||↵||Desierto, supra, at 962.|
|37.||↵||Desierto, supra, at 955.|
|38.||↵||Desierto, supra, at 955.|
|39.||↵||Id. at 963.|
|40.||↵||Id. at 964.|
|41.||↵||Id. at 966.|
|43.||↵||Desierto, supra, at 968.|
|44.||↵||Kinney v. United Healthcare Services, 70 Cal. App. 4th 1322 (1999) (cited by Wardaugh, supra, at 447.).|
|47.||↵||Concepcion, 131 S. Ct. at 1760 (Breyer, J., dissenting) (cited in Wardaugh, supra, at 444.).|
|48.||↵||American Express, 133 S. Ct. at 2313 (2013) (cited in Wardaugh, supra, at 446.).|