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Stockholm Arbitration Report (SAR)

Preview Page SAR 2003 - 1

Observations by Bradley J. Freedman and Edward Charles Q. C. Chiasson 

Subject-matters:
1) Electronic commerce. Whether a contract might be amended – and an arbitration clause included – through the posting of a website notice.
2) Whether the arbitration agreement was invalid because it was unconscionable.

Findings:
1) The amending provision in the company’s internet service agreements oblige customers to check relevant parts of the website periodically in order to determine whether amendments had been made. The company had provided its customers with sufficient notice of the amendments and the customers had accepted the amended agreement by continuing to use the service. Notices of amendments need not be posted on the website’s homepage.
2) The arbitration clause was not unconscionable since (i) the company did not use its bargaining power to take advantage of its customer, and (ii) it was not sufficiently divergent from standards of commercial morality so as to be improvident.

Parties:
Claimants: Stefan Kanitz, Hugh Wallis, Richard Pearce, James Carnegie and John R. Wilson (Canada)
Respondent: Rogers Cable Inc. (Canada)

Place of court proceedings: Ontario, Canada

Applicable law: The Canadian Arbitration Act and Class Proceedings Act