The advance costs associated with arbitration in the Netherlands were also, in the eyes of the majority, the clear result of a reckless agreement. Since the majority of the Tribunal found that the agreement was ruthless, the majority of the Tribunal found that it was not necessary to determine whether or not the agreement constituted improper performance of the contract under the Employment Standards Act. It is interesting to note that in contradiction with this, Justice Côté has attached great importance to the freedom of the parties to conclude contracts. The majority then discussed at length the doctrine of the faculty of scruples. It requires both “unequal bargaining power and a reckless agreement that results from it” (para. 65). In the first cases, the majority referred to the standard form, the take-it-or-leave-it nature of the contract and the “great difference in sophistication” between the parties (para. 93). In the latter case, the majority pointed to the high costs and the obvious need to travel to the Netherlands to generate disputes (paragraph 94). According to her, “no reasonable person who understood and appreciated the effects of the arbitration clause would have accepted it” (para. 95). As a result, the clause is ruthless and therefore ineffective.
According to lawyers for Larson O`Brien`s drivers, a total of six arbitration proceedings against Uber are therefore in preparation to move forward. More than 12,000 other arbitration claims — many of which were filed more than three months ago — have remained stuck in the very first stage of the lawsuit that Uber has long touted as an effective and inexpensive alternative to litigation. At the request of a party, the Arbitration Act orders the courts to stay the judicial proceedings in favour of an arbitration agreement, unless the court has established that the agreement is not valid. The Supreme Court of Canada ruled that this was not a situation in which it would have to refer to the arbitrator a challenge to an arbitrator`s jurisdiction, the prohibitive costs being related to the transition to arbitration, and continued its analysis of scruples. In June, the Supreme Court of Canada released its decision in Uber Technologies Inc. v. Heller and dismissed an appeal from a decision of the Ontario Court of Appeal that found that the arbitration clause in Uber`s standard form service agreement was invalid because of scruples and because it emanated from the Employment Standards Act. Chris, with respect to your observation: “This ignores in particular other reasons why parties often include arbitration clauses in their agreements: ensuring that decision-makers have the necessary expertise, the legitimacy of decisions resulting from party-led processes, and confidentiality.” Certainly, no party would choose arbitration for any of the reasons you mentioned, knowing that actual arbitration would always be out of its reach. Brown J. agreed that the arbitration agreement was not valid, not because it is ruthless, but because it undermines the rule of law by denying access to justice and, therefore, violating public order.
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