THE ARBITRABILITY OF INTERNATIONAL ONLINE CONSUMER DISPUTES MOHAMMAD A. ALADASEEN Thesis Submitted to the University of Bangor for the Degree of Doctor of Philosophy September 2015 Abstract Private arbitration is often made possible by pre-dispute clauses and agreements whereby parties waive the right to solve their disputes by court. The doctrine of arbitrability addresses the questions of what matters may be referred to arbitration and who will be party to it. This thesis is a comparative study that explores the theory and practice of the arbitrability of international online consumer disputes as they function in two legal systems, that of England and Wales and that of the United States of America. The purpose of this exploration is to analyze comparatively and to discuss critically the role of arbitrability, and also the problematic areas of that doctrine in international online consumer disputes. The thesis will propose ways of overcoming the problems encountered in the arbitrability of international online consumer disputes owing to the different policies regarding the arbitrability of such disputes that are to be found in the two legal systems named above. This objective is met by exploring the theory, methods, functions and purpose of arbitrability in international online consumer disputes. The thesis also examines the common ground between the different policies of the two jurisdictions. The overall aim is to strengthen the role of arbitration as an effective means of dispute resolution for international online consumer disputes. The thesis demonstrates that the arbitrability of international online consumer disputes is relevant at three different stages of international arbitration. These stages are: at the outset of proceedings, when the arbitrators determine their jurisdiction; during the arbitration, where they control the law and procedure applicable to the arbitration; and at the stage of enforcement of the final award. The thesis demonstrates that the lack of uniformity in arbitration law damages the arbitrability of international online consumer disputes. It also shows that a new method for reconsidering the issue of the arbitrability of such disputes is required in order to lend support to the consumer as the weaker party, specifically at the outset and in the course of the arbitration proceedings. It concludes that an adequate transnational standard for determining the arbitrability of international online consumer is by no means an impossibility. The thesis furthermore asserts that a verification method is needed in order to establish the status of the consumer as the weaker party in online disputes. Such a verification method should be transnational and should be carried out by the arbitrator so as to i establish a balance between party autonomy and the reinforcement of the consumers’ protection internationally. This reform is particularly necessary in view of the continuing worldwide expansion of internet used. ii This thesis is dedicated to My Parents For their endless love, support and encouragem iii Acknowledgement Praise be to Allah, the Lord of the worlds, whom all people praise in different languages. He is the Most Bounteous and the Most Beneficent "Those who do not thank people, they do not thank Allah." The Prophet Muhammad Peace and blessings be upon him Having finished this work, I would like to take this opportunity to thank a number of people who have provided their unreserved support during the course of my PhD study. I would like to offer particular thanks to my supervisor, Dr Pedro Telles. This thesis would not have been completed without the benefit of his guidance, encouragement and insightful comments on this thesis. I would also like to thank Professor Dermot Cahill my original supervisor in the early stage of my work, who inspired me profoundly with regard to the research topic. I also would like to thank all the academic staff of the Law School at Bangor University for their assistance specifically, Dr. We Shi, Dr. Mark Hyland, and Mrs Mairwen Owen. I would like to acknowledge all my friends for their moral support and motivation, which drives me to give my best, namely Dr. Ramzi Madi and Dr. Yousif Alija for their continuous encouragement and support. Indeed, my acknowledgement will never be complete without the special mention of my parents and family members, who have been patient, supportive and caring. This thesis is indeed a realisation of their dream. Thank you Mohammad iv Declaration and Consent Details of the Work I hereby agree to deposit the following item in the digital repository maintained by Bangor University and/or in any other repository authorized for use by Bangor University. Author Name: Mohammad Abdul -Wahab Aladaseen Title: Mr Supervisor/Department: Funding body (if any): Qualification/Degree obtained: Ph.D Law This item is a product of my own research endeavours and is covered by the agreement below in which the item is referred to as “the Work”. It is identical in content to that deposited in the Library, subject to point 4 below. Non-exclusive Rights Rights granted to the digital repository through this agreement are entirely non-exclusive. I am free to publish the Work in its present version or future versions elsewhere. I agree that Bangor University may electronically store, copy or translate the Work to any approved medium or format for the purpose of future preservation and accessibility. 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Signature: ……………………………………………………… Date: viii List of Abbreviations AAA American Arbitration Association B2B Business-to-Business B2C Business-to-Consumer CISG International Sale of Goods Convention 1980 CJEU Court of Justice of the European Union CPR Civil Procedure Rules 1998 CUECIC United Nations Convention on the Use of Electronic Communications in International Contracts 2005 EU European Union FAA United States Federal Arbitration Act 1925 IBA International Bar Association OECD Organisation for Economic Co-operation and Development UCC Uniform Commercial Code 2001 UCTA Unfair Contract Terms Act 1977 UTCCD Unfair Terms in Consumer Contracts Directive 1993 UTCCR Unfair Terms in Consumer Contracts Regulations 1999 ix