Dispute resolution clauses enable the parties to the contract to dispose of the disputes that may arise in the way agreed in those clauses. Due to their increased importance they have been one of the most common terms challenged as to their enforceability. In consumer contracts, it is a common phenomenon that the consumer enters into a contract without reading its terms, much less understanding and accepting said terms. Since consumers do not read and neither negotiate standard form contracts, the basic assumption of meeting of the minds or accord of the wills as a prerequisite for contract formation is challenged, or, as Shmuel Becher put it, the idea of informed consent. At the same time, judicial scrutiny of the fairness of the terms is warranted since the party adhering to a commercial contract had no effect over its terms and the contract was not the result of a fair bargain. This paper compares the approach from courts both in the US and the EU in dealing with problems of consent when it comes to dispute resolution clauses/agreements (arbitration, forum selection as well as choice-of-law agreements) in consumer contracts. Whereas the analysis in both jurisdictions rests on the continuum of party assent required to create an enforceable contract, the degree of such assent (from low to high quality assent) differs. In the EU because of the influence of the civilian conception of contract as an accord of wills, a higher threshold is held for proving that the consumer assented to the contract.
Mouttotos, Nicholas, The Extension of Disclosure Duties in EU Private International Law: A Comparative Perspective (March 30, 2022). Young Universities for the Future of Europe (YUFE) Law Conference Proceedings 01/2022.