Consent to Arbitration Through Agreement to Printed Contracts: The Continental Experience

Abstract

PRINTED CONTRACTS (or contracts of which a considerable part is often preprinted), can be, inter alia , insurance contracts, construction contracts,1 maritime contracts, articles of association, software contracts, investment contracts,2 public procurement contracts, rental contracts, distribution and agency agreements. In fact, every contract may have, as an integral part of it, an annex consisting of preprinted general conditions, general clauses, applicable administrative rules, etc. These printed contracts or contract clauses normally cover a wide range of topics, of which the jurisdiction clause is but one. The question in which circumstances this printed (part of the) contract has been properly agreed to by the parties is a general one which may arise in relation to any particular clause of the contract (whether on interest for late payment, on liability or on penalty for non-performance) and each legal system or even each country has its own rules to determine whether mutual consent to it exists. We shall attempt to determine here whether among the many topics which are covered in the contract, the jurisdiction clause and, in particular, the arbitration clause is subject to special, particularly stricter, rules concerning consent. In other words, is it correct to state, as a Belgian court did – for a purely domestic arbitration – that: > If general conditions of one of the parties contains an arbitration clause, its binding effect on the other party does not depend on any specific arbitration rule, but on the general rules of contract law which determine when general conditions can be relied upon3? Simple as this answer appears, at least in a domestic case, there is no doubt that jurisdiction clauses (whether relating to state court jurisdiction or to arbitration) have, in international private law, a special status which distinguishes them from other contract clauses. For …