Specification of the Arbitration Clause Reminder Explanation Obligation and Adjudication Ideas

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　　In order to facilitate the resolution of disputes, some standard contracts will stipulate a standard arbitration clause in them, that is, when a dispute arises between the two parties to the contract, either party shall file an arbitration with an arbitration institution to resolve the dispute, excluding the way to resolve the dispute through litigation. Whether the provider should fulfill the obligation to prompt and explain the standard arbitration clause is a common problem in judicial practice. The study of this issue will help clarify the controversy and promote the unification of applicable laws.

One

Dispute over the validity of standard arbitration clauses

　　The key to the validity of a standard arbitration clause lies in whether the provider of the standard arbitration clause should fulfill its obligation to prompt and explain the clause. In practice, the views that hold a positive opinion on this issue can be further divided into the following types:

　　The first view is that the standard arbitration clause is a clause that has a "material interest" in the parties as stipulated in the second paragraph of Article 496 of the Civil Code. According to this provision, if the party providing the standard clause fails to perform the obligation of prompting or explaining, resulting in the other party not paying attention to or understanding the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. Accordingly, the provider of a standard arbitration clause shall bear the obligation to prompt and explain the clause, otherwise, the other party may claim that the clause does not become the content of the contract.

　　The second view is that not all providers of standard arbitration clauses should bear the obligation of prompting and explaining, and the subject of such obligation should only be limited to the operators who provide standard arbitration clauses to consumers. Article 31 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the "Interpretation of the Civil Procedure Law") stipulates that if a business operator uses standard terms to enter into a jurisdiction agreement with a consumer and fails to draw the attention of the consumer to it in a reasonable manner, the people's court shall support the consumer's claim that the jurisdiction agreement is invalid. According to the jurisprudence of "giving priority to the most important", the standard clauses of the jurisdiction agreement that choose the court at the point of connection of litigation should be brought to the attention of consumers in a reasonable manner, and the standard arbitration clauses that restrict consumers from seeking relief through litigation should be brought to the attention of consumers in a reasonable manner.

　　The third view is the same as the second view, and it is also believed that the obligation to prompt and explain the standard arbitration clause should be limited to the business operator who provides the standard arbitration clause to consumers, but the argumentation is different from the second view. The third point of view is that the standard arbitration clause is a clause with a significant interest in the consumer, so the second paragraph of Article 496 of the Civil Code is applicable, requiring the business operator to bear the obligation to prompt and explain the standard arbitration clause.

　　The negative opinion holds that the standard arbitration clause is an agreement on the litigation procedure, not a clause that exempts or reduces the liability of the clause provider, and does not involve the material interests of the parties, so the provisions of the material interest clause of the Civil Code cannot be applied as a matter of course. At the same time, Article 31 of the Interpretation of the Civil Procedure Law is a special provision on the jurisdiction agreement, which shall not be arbitrarily extended to the arbitration clause.

Two

The standard jurisdiction clause indicates the purpose of the obligation provision

　　Based on the above analysis, the provision most similar to the standard arbitration clause is Article 31 of the Interpretation of the Civil Procedure Law, which is a new provision based on Article 35 of the Civil Procedure Law and Articles 39 and 40 of the original Contract Law (corresponding to Articles 496 and 497 of the Civil Code). Article 35 of the Civil Procedure Law provides that the parties to a dispute over contracts or other property rights and interests may, by written agreement, choose the jurisdiction of the people's court at the place where the defendant is domiciled, the place where the contract is performed, the place where the contract is signed, the place where the plaintiff is domiciled, and the place where the subject matter is located.

　　According to the Supreme People's Court's interpretation of the Interpretation of the Civil Procedure Law, it is common in practice for standard contracts to contain standard jurisdiction clauses, and business operators usually draw up "litigation in the people's court where the business operator is located in case of disputes". Although the content of the jurisdiction clause of such an agreement does not exempt or limit the liability of the operator, it excludes the jurisdiction of the court at the place of performance of the contract and the domicile of the defendant, and excludes the right of the other party to choose the jurisdiction of other courts with a connection point, which greatly facilitates the litigation of the operator and is not conducive to consumer litigation. In order to prevent business operators from using standard contracts to harm the interests of consumers, it is necessary to limit the agreement jurisdiction clauses in standard contracts.

　　From the analysis of the original intention and purpose of Article 31 of the Interpretation of the Civil Procedure Law, this provision reflects that the legislator pays more attention to the legislative value orientation of judicial fairness when designing the jurisdiction rules. The design of the jurisdiction rules not only involves the implementation of the "two-convenience principle", but also is of great significance for effectively eliminating local protectionism and safeguarding judicial fairness. The Interpretation of the Civil Procedure Law makes detailed provisions on exclusive jurisdiction, territorial jurisdiction, transfer of jurisdiction, etc., so as to reduce jurisdictional disputes and objections and maintain procedural fairness. This provision also reflects the requirement to maintain substantive justice and to provide appropriate tilted protection to consumers who are in a vulnerable position.

Three

The standard arbitration clause prompts the determination of the obligation to explain

　　On the question of whether the provider of a standard arbitration clause should bear the obligation to prompt and explain, the author agrees with the third viewpoint mentioned above. First of all, judging from the legislative interpretation of Article 31 of the Interpretation of the Civil Procedure Law, the special provisions of this article are based on the weak position of consumers in the face of business operators, and are inclined to protect consumers. Through the jurisprudence of "giving priority to the obvious", the content of the jurisdiction agreement should be obliquely protected, and arbitration clauses that restrict consumers from seeking relief through litigation should be more obliquely protected. For example, a court ruled in a jurisdictional objection case that "although the arbitration clause does not involve the substantive rights of the parties, it will have an impact on the parties' exercise of procedural rights." The appellant, Apple Electronics Trading (Beijing) Co., Ltd., operated the official flagship store of the Apple Store on Tmall Mall, and although there was an arbitration clause in the "Apple Store Official Flagship Store Sales and Refund Policy", the clause was a standard clause, and there was no evidence to prove that the Appellant had fulfilled its duty of care to the Appellee. Therefore, the arbitration clause did not have binding arbitration effect on the appellant. ”

　　Second, for a general standard arbitration clause, if the standard arbitration clause is not an agreement between the operator and the consumer, it is generally not considered to be a clause with a material interest to the parties. As mentioned above, the provisions of Article 31 of the Interpretation of the Civil Procedure Law are based on the vulnerable position of consumers, and should not be expanded in other contracts that do not involve consumers. In other words, in a standard contract, if the relevant standard clauses are only an agreement on some procedural matters, it is generally not considered that there is a material interest with the parties.

　　Third, although the second view and the third view have the same conclusion in terms of results, the third view is the most logically smooth, and the second view is directly deduced from the jurisprudence of "taking the light to the obvious" to reach the final conclusion. The third point of view is to deduce the conclusion that the consumer-related standard arbitration clause has a significant interest to the consumer through the legal theory of "giving the light to the obvious", and then apply the provisions of Article 496, Paragraph 2 of the Civil Code for adjudication. This kind of adjudication thinking is more standardized and more in line with the requirements of the court's adjudication.

Four

The criterion for judging "reasonable manner".

　　Article 31 of the Interpretation of the Civil Procedure Law also clarifies that business operators shall draw the attention of consumers to the standard terms of the jurisdiction agreement in a reasonable manner. In practice, the judgment of "reasonable manner" is also a difficult point for judges to adjudicate such cases.

　　The Leading Group for the Implementation of the Civil Code of the Supreme People's Court proposed in the Understanding and Application of the Civil Code of the People's Republic of China (I) that in terms of reasonable reminders, in accordance with Article 6 of the original Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China, the party providing the standard clauses bears the burden of proof that it has fulfilled its obligation to provide reasonable reminders and explanations, and the party providing the standard clauses adopts words, symbols, and symbols that are "sufficient to attract the attention of the other party". Where fonts and other special signs express standard clauses, it may be considered that a reasonable method has been adopted. Although this article is an interpretation of the provisions of the original Contract Law, the content of its interpretation is no different from the current provisions. Some enterprises tend to mark many clauses in bold in the standard contract, and due to the large scope of the marked content, some contents that need to be specially explained become inconspicuous. This is a problem that tends to occur when prompting or explaining with special signs such as symbols and colors. Although some special word signs themselves are obvious, the place or location where they appear may not be noticed at all, and at this time, they will not be able to play their due role. Therefore, the prompt should be "sufficient to attract the attention of the other party".

　　Based on the above understanding and application analysis, when determining the "reasonable way", it should not be limited to the form of expression adopted by the standard clause, but should adhere to the examination standard of substance over form, and the key is to judge whether the relevant prompt has reached the level of "sufficient to attract the attention of the other party". For example, a court in Guangdong ruled that: "According to the printed copy of the webpage of the Gome Online Service Agreement provided by the appellant, Gome, the agreement has a total of 26 pages. In the case of a large amount of information in the agreement and the use of bold font in many clauses, the clauses of the jurisdiction agreement that need to be brought to the attention of consumers should be marked with significant distinction, but the provisions of Article 14 on the jurisdiction agreement are only treated in bold font and are not clearly distinguished from other clauses, which is not sufficient to attract the attention of consumers and does not meet the requirement of taking a reasonable approach to draw consumers' attention. A court in Beijing held that the checkbox in front of the prompt "I have read and agree to the purchase agreement" was automatically selected by the system, and the consumer could proceed to the next step of submitting the order without clicking on the purchase agreement, and the jurisdiction clause in the purchase agreement did not use the words in black or bold enough to attract the attention of the other party.

　　Therefore, when judging whether the provider of a standard arbitration clause has fulfilled its duty of care, it should uphold a high standard and comprehensively consider the following factors: whether the standard arbitration clause is blacked and bolded, the proportion of the special mark in the contract clause, the content of the relevant clause of the service contract, whether the mandatory reading of the contract clause is required in the electronic contract, and the location of the standard arbitration clause. At the same time, it should be noted that even if the standard arbitration clause is not blacked or bolded in the contract, in the process of signing the contract, if the relevant business operator can provide evidence to prove that it has brought the standard arbitration clause to the attention of consumers by providing audio or video recordings, it should also be deemed to have fulfilled its duty of care.