АРБІТРАЖ ЧИ СУДОВИЙ РОЗГЛЯД? АБО: ЧИ СКОРИСТАВСЯ ПІДПРИЄМНИЦЬКИЙ МЕНТАЛІТЕТ У США ПОЛОЖЕННЯМ / УГОДОЮ ПРО ОБОВ'ЯЗКОВИЙ АРБІТРАЖ, ЩОБ ОБМЕЖИТИ ПРАВА НА РОЗВ’ЯЗАННЯ КОМЕРЦІЙНИХ СПОРІВ В СУДІ

Abstract

Purpose. The purpose of the article is to reveal whether the business mindset has used the mandatory arbitration clauses/agreements to compromise the US consumer’s right to a trial to resolve business disputes in the United States. Methodology. The results of the study were obtained by the following methods: systematic and comparative methods – to determine the essence and peculiarities of historical business behavior, business ethics and mindset; time, cost and mindset factors in arbitration vs litigation from the businesses’ and consumers’ perspectives; analysis and synthesis methods – to reveal the complex historic factors and interests that pre-determined the formation and application of arbitration. Findings. In accordance with the study objectives, the author: 1) identified that business mindset was focused on making a profit and doing whatever it takes to make that profit and achieve the ambition of the business owner(s); 2) observed that companies’ bend towards arbitration in the US developed as a way to avoid profit loss and avoid obstacles that would impede business for achieving it ambition due to high cost and duration of litigation; 3) revealed that there was concerted effort between business and pro-business supporters to favor the use of mandatory arbitration, which waived the right to trial; 4) discovered that actions to ban mandatory arbitration have been pre-empted by the Federal Arbitration Act; 5) unveiled that during COVID 19, while jury trials are on hold, proceedings whether litigation or arbitration are still taking place remotely; 6) concluded that the business mindset used the mandatory arbitration clause/agreement to compromise the right to trial to resolve business disputes in the United States. Originality. The author offers original insights and interpretation of historic factors leading to the development and transformation of arbitration, as an alternative to litigation, system and procedures. The article contains original analysis of the newest events and practical outcomes of the status-quo of the US Legal System. Practical value. In the light of a growing consumer backlash as result of the abuses occurring in the arbitration process, the article may serve as a methodological and theoretical basis for further development of American business legislation in the part of dispute resolution. The United States Elections of 2020 will be a determinant of the fate of mandatory arbitration and the right to trial.