On the Question of the Legality of Concluding an Arbitration Agreement with the Participation of Consumers

Abstract

The paper is devoted to the analysis of the issue of arbitrability of disputes involving consumers, which does not find an unambiguous solution either in law or in judicial practice. The author examines the positions of the highest judicial instances, as well as courts of general jurisdiction and arbitration courts on this issue, which are contradictory in nature. Having conducted a systematic analysis of legislation, legal science and judicial practice, given the special legal situation of the consumer, the author concludes that it is possible to have an arbitration agreement between the consumer and a person engaged in entrepreneurial activity, subject to certain conditions, in particular, the presence of the free will of the consumer to consider the dispute in the arbitration court and the absence of infringement of his rights in arbitration proceedings in comparison with the consideration of the dispute in the state court. The question is raised about the need for the administration of this category of disputes by permanent arbitration institutions. According to the results of the scientific research, changes in the norms of the legislation of the Russian Federation regulating the relations under consideration are proposed. Thus, it is proposed to word paragraph 1 of Article 17 of the Law of the Russian Federation “On Consumer Rights Protection” as follows: “Consumer rights protection is carried out by a court or an arbitration court”. It is also proposed to supplement Article 17 of this Law with paragraph 4: “Disputes involving consumers can be submitted to an arbitration court if all guarantees provided by law for the arbitration party are met for the consumer, provided that the following conditions are met: 1) the dispute must be considered during the administration of a permanent arbitration institution; 2) the consumer must be exempt from paying the costs associated with resolving the dispute in arbitration; 3) the place of arbitration must be determined within the subject of the Russian Federation in which the consumer resides.”