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Case Details

Case Details
National ID 200.040.671/01
Member State Netherlands
Common Name link
Decision type Other
Decision date 05/07/2011
Court Gerechtshof (Appellate court, Leeuwarden)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1.

Standard contract term used in construction contracts that refers any dispute to arbitration is considered to be unfair.
Consumer asked in 2003 the company to rebuild certain parts of his apartment. The order for such services was confirmed in writing on the 19th of November 2003. The consumer claims he did not receive this confirmation, which included referral to standard contract terms of the company’s building branch (AVA 1992) and declared them applicable to the contract. The consumer did not consider the services he had received to be conforming his order and claimed damages from the company in front of a court. The company claims that due to standard contract terms any disputes were supposed to be resolved by arbitration.
The court declared that the arbitration clause in the standard contract terms used in construction contracts (AVA 1992) should be considered as unfair. An arbitration clause is not listed on a grey or black list of art. 6:236 and 6:237 BW, which means its unfairness character should be tested on the basis of the general norm of art. 6:233a BW, implementing art. 3 of the Directive. Dutch law does not, in general, consider arbitration clauses as unfair, however, the character of each and every such clause should be determined conforming provisions and the aim of the Directive. Provisions mentioned in the Annex are only an indication of unfair contract terms (Freiburger Kommunalbauten, Commision v. Sweden CJEU’s cases). The court then decides that article 21 of AVA 1992 clearly is an unfair contract term, since it limits consumer’s access to the regular court in case of a dispute, and only allows for arbitration proceedings to take place, often without consumer even knowing about this provision. This is against consumer’s fundamental human rights (art. 17 of the Convention is mentioned) that guarantee him access to courts. Other disadvantages of arbitration for consumers are being mentioned: less independence of arbiters than judges, less strict observance of legal provisions, more expensive proceedings, distance between the consumer’s residence and the place in which the arbitration is located. Additionally, the court mentions that in the new proposal for a Statute of Arbitration arbitration clauses in consumer contracts are declared voidable, as long as the consumer is not left with a choice between arbitration commission and regular court to preside over his dispute. All together these circumstances determine unfairness of the clause.
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