Legal Regulation of Arbitration Clauses in Cross-border E-commerce Browse-wrap Contracts

XIANGSHU LIU; JUNYA ZHANG

doi:10.31839/ibt.2020.10.31.1

Cross-border e-commerce platforms generally set arbitration as a channel for dispute resolution. In format contracts such as browse-wrap contracts, the extensive application of unfair arbitration clauses has left Chinese consumers to bear the risks of frequently losing the lawsuits. Since the rules for format clauses such as the consent regulation, the obligation of prompting explanation, and the principle of obvious unfairness have been inadequately supplied, it has left much room for referees, causing the confusion of judicial application. Apparently, the arbitration clauses have been abused by the operators to pre-allocate interests and evade judicial risks, which have caused damages to the legitimate rights and interests of consumers. In order to better protect the of consumer’s legitimate rights and interests under new technologies, relevant legislation should take account of the important role browse-wrap contracts in economic development. Therefore, it should be made clear that on cross-border e-commerce websites where the hyperlink contracts are set, the element of concurrence of both parties should be “informed consent”, the formal regulation of notification obligation such as “red hand rule” should be adopted to regulate the platform, and the cases of unfair standard arbitration clauses should be clearly set.

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* 2021년 이후 발행 논문의 참고문헌은 현재 구축 중입니다.

[journal] Povilas Kamantauskas / 2015 / Formation of Click-Wrap and Browse-Wrap Contracts / Law Review 1(12) : 51~88

[journal] Qiuyue Wei / 2018 / Research on the Validity of Mandatory Arbitration Clause in Cross-border Consumer Contracts / Law Science Magazine (5) : 122~130

[journal] Min Yao / 2019 / Issue and Approaches of Consumer Arbitration in China——Inspired by Consumer Arbitration in the United States / Hebei Law Science, (3) : 147~163

[journal] Wentao Xu / 2019 / The Validity of the Arbitration Clause in the Network Service Standard Agreement / People Rule of Law (10,) : 44~49

[journal] Qingfeng Xia / 2020 / The Exclusion of Pseudo-Contract Clause in the Network Contract / Business and Economic Review (2) : 102~119

[journal] Qingfeng Xia / 2020 / Correction Rules for Improper Standard Clauses in Network Contracts / Jianghan Tribune, (2) : 134~144

[journal] Print. Shengzhe Wang / 2018 / Research on America Consumer Class Arbitration Waiver Clause / Social Scientist (10) : 119~125

[journal] Jean R. Sternlight / 2012 / Mandatory Binding Arbitration Clause Prevent Consumers from Presenting Procedurally Difficult Claims / Scholarly Works Law Review : 87~129

[journal] Steve Kapnoullas / 2006 / Incorporation of Unusual or Unreasonable Terms into Contracts: The Red Hand Rule and Signed Documents / Deakin Law Review (11) : 95~

[web] / China has newly established 46 comprehensive cross-border e-commerce pilot zones, and cross-border e-commerce accelerates the creation of a new pattern of foreign trade / https://baijiahao.baidu.com/s?id=1663833254621775099&wfr=spider&for=pc

[journal] Shitong Qiao / 2007 / The Effect of Arbitration Clauses in Electronic Standard Contracts: Taking the Microsoft End-User License Agreement in the Chinese Consumer Market as an Example / Wuhan University International Law Review (2) : 85~95

[journal] Yongping Xiao / 2013 / A probe into Online Trading Platforms’Influence on the Validity of General Arbitration Agreement / Wuhan University International Law Review (2) : 26~42

[journal] Larry J.Pittman / 2011 / Mandatory Arbitration. Due Process and Other Constitutional Concerns / Capital University Law Review (39) : 853~854

[journal] Florencia Marotta-Wurgler / 2011 / Some Realities of Online Contracting / Supreme Court. Economic Review (19) : 11~23

[journal] Hui Ma / 2016 / Research on Information Regulation for Standard Form Contracts: From the. Perspective of Behavior Law and Economics / ECUPL Journal (2) : 74~93

[thesis] Anqi Hu / 2019 / Research on Problems in Legal Regulations of the Standard Terms of Internet. Service Contract / PHD / Anhui University in China

[journal] J. Hörnle / 2008 / Legal Controls on the Use of Arbitration Clauses in B2C E-Commerce Contracts / Masaryk University Journal of Law and Technology (2) : 23~38

[journal] Caterina Gardiner / 2019 / Principles of Internet Contracting: Illuminating the Shadows / Common Law World Review 48(4)

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