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

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2020, (31), pp.1-26
  • DOI : 10.31839/ibt.2020.10.31.1
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : September 10, 2020
  • Accepted : October 19, 2020
  • Published : October 31, 2020

XIANGSHU LIU 1 JUNYA ZHANG 1

1

Accredited

ABSTRACT

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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