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Comment by smallbigfish | Hacker News Reader

Is this an US thing?

I always assumed that no contract can be "above" the law.

In fact I just checked the Constitution in my country and it specifically says that no other law can cancel the fact anyone can address justice.

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The US has been seriously under-investing in its court system for quite a while and arbitration agreements are part of that. Generally big companies making agreements with each other as equals will also put in arbitration agreements because going through the civil courts is very slow and expensive and they want to find what the resolution of a conflict is right now rather than in N years. But this can become abusive when it's a big company dealing with someone who didn't have lawyers reading the contract.

You see a similar thing with the US criminal system and plea bargains.

Many countries allow binding pre-dispute arbitration agreements if two businesses negotiate a contract with each other and agree to that.

Countries get more skeptical when it's in standard seemingly non-negotiable language from one of the businesses.

Most countries get very skeptical and often ban pre-dispute binding arbitration when one party is an employee or a consumer, especially if the other party drafted the language.

In the last few decades, the US has become the exception to that.

All countries I'm aware of (probably not including your country) will allow consumers and businesses to agree to arbitrate a dispute that has already arisen, with binding effect.

I think the thinking (I'm not defending it) in some circles is that the courts are slow and expensive. Anything that keeps disagreements out of the courts is a win for society. If accidentally run into your mailbox, rather than requiring you to sue me, we can come to an agreement outside the courts. This is much more efficient.

Right, and if the two parties, of their own volition, decide to use arbitration instead of courts, that's a good thing. But it should never, ever be required to sign away your rights for redress in the courts as part of any agreement.

> Right, and if the two parties, of their own volition, decide to use arbitration instead of courts, that's a good thing. But it should never, ever be required to sign away your rights for redress in the courts as part of any agreement.

Or it should always be a separate agreement from any other, that can be signed or not depending on if both parties have the same view of the court system, without affecting other business between them.

>> I always assumed that no contract can be "above" the law.

Law and justice are different things. This is about lawsuits, demanding money as compensation for wrongs. Lawsuits are about settlements and confidential agreements negotiated between parties. Justice is a matter for criminal courts. Justice is about the government punishing people who break laws. That cannot be usurped by contract. Uber employees who break the law are still prosecuted regardless of eulas.

Good to know. I never made the distinction myself. Then again I do wonder, isn't sexual assault/harassment a matter for criminal courts? Who decides?

The assault and the assaulter are a criminal matter for the courts. Suing Uber for damages because the assaulter was an agent of theirs at the time (probably for enabling the assault with bad policy or something else related to the company) is a matter for arbitration.

My simple logic then says we should sue those who bought Volkswagen, VW itself just had a "bad policy".

My question still stands though, who decides it's just bad policy and it's not in fact hiding/helping/aiding the criminal?

The State can prosecute a case if someone is accused of "aiding and abetting" another's criminal act, or of "conspiring" to commit the crime.

https://en.wikipedia.org/wiki/Aiding_and_abetting

https://en.wikipedia.org/wiki/Conspiracy

It is, however, someone not super well versed in contract law might assume that this arbitration clause covers that as well, and feel they would be unable to go to the police, too.

I don't think your explanation properly explains torts. "Criminal" laws cover violations against the State (crimes). Civil laws are violations against individuals (torts).

Torts are absolutely part of the Justice system. https://en.wikipedia.org/wiki/Tort

We can debate minutia of legal doctrine forever. Torts don't require civil laws, only civil wrongs. Whether or not they are part of the "justice system" is also different than the concept of "justice".

You are correct, no contract can be "above" the law. However, now that you "signed" a EULA, the onus will be much more on you proving this is illegal, costing you time and money, and the person enforcing the EULA has a legal team. So they knowingly write these contracts knowing they are unenforable, and get away with it most of the time.

Also, I believe the rules and procedures in binding arbitration can be different than in the court system, which can further stack the deck against the consumer.

I have a friend who lost a real estate arbitration case because of that, and got no compensation for serious structural issues that weren't disclosed and were caused by a remodel undertaken by the previous owner.

There is no onus to prove anything. You go to court as usual and the arbitration clauses is instantly dismissed if it's ever brought up during the trial. That's how it works in countries that don't allow arbitration.

Somewhat. An EULA for example in germany is basically worth nothing if you don't provide a short and concise summary of any out-of-the-ordinary clauses in it.

And contracts cannot generally be above the law in any reasonably jurisdiction. The law enables contracts to function in the first place and also governs what they can and cannot do.

No contract can be above the law in the United States either.

However, there are laws that legalize and codify private arbitration and how those work. In that regard, the contracts operate within the law.

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