Enforceability of arbitration clauses in online agreements under the Nigerian law
By Elvis E. Asia[i]
Introduction
As the society steadily moves online in all areas of human endeavours, various agreements are entered into expressly or impliedly online. Three terms have come to represent these agreements- clickwrap, browsewrap and hybridwrap. Whether you want to use an app, subscribe to social media platforms like Facebook, Linkendin, WhatsApp, Instagram etc., buy goods and services on online shops like Jumia, Konga, Amazon, and other platforms, engage in online financial transactions or fintech, participate in the digital influenced gig economy (Uber, Bolt, Gokada, etc), you cannot escape entering into one of such agreements.
In clickwrap agreements, users are mandatorily required to click on an “I agree” button or expressly assent to the terms and conditions before they can continue with their transactions. Browsewrap agreements on the other hand, are provided through a hyperlink on the website, often at the bottom of the screen. They do not require the user to manifest his or her consent to the terms and conditions, but instead the party consents simply by using the website. Hybridwrap agreements have the characteristics of both and “typically prompts the user to manifest assent” after presenting a hyperlink to the terms and conditions, rather than displaying the terms themselves[1]. A fourth category which is essentially a version of clickwrap is a scroll-wrap. In a scroll-wrap, the agreement actually appears in a pop-up window and requires the user to scroll to the bottom of the agreement before they click the “I agree” box.
Unknown to most users, many of these online agreements have very significant and far-reaching legal implications. Two clauses in these agreements stand out in this regard – exclusion/exemption clause under which companies insulate themselves against virtually all liabilities and arbitration clauses which mandate arbitration in the event of dispute. The focus of this article is arbitration clauses but some of the principles discussed here would apply to exclusion clauses and online terms and conditions generally.
In most standard online terms and conditions, arbitration clauses are inserted. Depending on the nature of the terms, online users merely click to indicate acceptance. Unless one wants to go back to the Stone Age, these agreements are inescapable and mandatory. The question is “To what extent are they enforceable under the Nigerian law?”
The nature of Arbitration Agreements
Arbitration is an alternative dispute resolution mechanism. In arbitration, a third party chosen by the parties adjudicates over a dispute. Arbitration is widely used in corporate agreements because of its many advantages over litigation- cheaper, more flexible, less formal, confidential, preservation of relationships, expert resolution of technical matters, expeditious resolution of conflict, etc[2].
Arbitration is governed by the Arbitration and Conciliation Act (ACA)[3]. Lagos state enacted the Lagos State Arbitration Law in 2009[4]. Arbitration can be entered into either by a separate agreement on the subject of arbitration alone or, like it is often the case; the clause is contained in an agreement with other detailed provisions. The agreement is treated separately regardless of what the contract is all about. An Arbitration clause usually names its applicable law, venue, appointment of arbitrators, applicable rules etc. The intervention of the court is minimal[5] and limited to staying proceedings in favour of arbitration[6], appointment of arbitrators[7] when the parties are unable to agree and enforcement of the resulting award[8].
Online businesses have a lot to benefit from arbitration agreements. Given the global nature of online businesses, it is peculiarly expedient for arbitration clauses to be inserted in their agreements because of issues such as choice of law, forum selection, litigation risks, risk of punitive damages awards and exposure to class actions or other forms of aggregate litigation, resolution of high-volumes of low-value claims, settlement of disputes where there is distance between the company and consumer, etc.
However in view of the peculiar nature of arbitration agreements, the enforceability of arbitration clauses in online agreements will be subject to slightly different standards compared to paper agreement signed by the parties. There is also considerable doubt as to their enforceability in the area of consumer contracts.
Validity of Online Arbitration Provision under the ACA
Section 1 of the ACA provides that an arbitration agreement must be in writing. Writing may be in exchange of telex, telegrams or other means of communication[9]. The question whether a clickwrap, browsewrap, hybridwrap or scroll-wrap qualifies as“writing” under the Act is not subject to debate[10]. The word “writing” in section1 (1) (b) of the ACA is liberally interpreted by the court. In Dangote Farms Limited v. Plexus Cotton Limited[11], for example, the Court of Appeal held that an arbitration agreement concluded by oral acceptance of a written offer is sufficient and valid under the section[12]. Furthermore, the Evidence Act defines a document to include any document by means of which is recorded, stored or retrievable including computer output[13].
The requirement of signature under the ACA is also complied with in online arbitration agreements because electronic signatures are binding in Nigeria[14] and by virtue of section 93(3) of the Evidence Act, electronic signature may be proved by showing that a procedure existed which requires a person to execute a symbol or security procedure in order to proceed with the transaction. A clickwrap and Scroll-Wrap would readily fall in that category. A browsewrap may not but nevertheless, a contract exchanged by means of telex and other means of communication need not be signed[15] and the court cannot shut its eyes to their existence[16]. The Evidence Act also recognizes electronic transactions and provides for their presumption and admissibility[17].
The issue however is in what circumstance does a ‘click’ or ‘browse’ or ‘scroll’ create a consensus where, as is usually the case, the arbitration provision is buried in general ‘terms and conditions’. Section 1(2) of the ACA provides in effect that where an arbitration clause is contained in a general contract like online agreements, the reference must be such as to make the arbitration agreement part of the contract. This presupposes that arbitration must be consensual, whether or not it is contained in a separate document (submission agreement) or, like the trend in online agreements, in terms and conditions. The truth is that nobody anticipates that he/she is entering into an arbitration agreement when ‘clicking’ on terms and conditions. There is usually no indication or a reference to the arbitration agreement in the box or hyperlink making reference to terms and conditions.
Arbitration agreement is separate from the main agreement and the law is that arbitration agreement must itself be a valid contract. This elementary principle is often missed when considering the enforceability of online agreements. For the law to recognize and enforce an arbitration agreement, it must be clear that there was consensus ad idem on the issue of arbitration. It is not enough, in my view, for an arbitration clause to be contained in a general agreement without evidence that the other party had notice or reasonably should have had notice and consented to it. This is important because arbitration agreement is a special agreement, one party cannot rescind or terminate the agreement without the leave of the court[18].
A combined reading of sections 1 and 2 of the ACA shows that an arbitration agreement cannot be entered into by accident or by implication. There must be the elements of voluntariness and agreement by parties to submit their dispute to arbitration[19]. Even in traditional arbitration agreements, the clause must be clear, conspicuous and the parties must have expressly waived their right to litigation in the event of a dispute. Where, as is often the case, the arbitration clause is ‘hidden’ in the terms and conditions, consensus for the purpose of enforceability will be called to question.
Ordinarily, a person is bound by a document signed by him, whether he reads it or not,[20] the reality of online agreements however and the peculiar nature of arbitration demand other considerations once it is established that the notice of the existence and mandatoriness of an arbitration clause was not sufficiently given to online users.
Other General Contractual Principles applicable to online agreements
Apart from the ACA as examined above, there are existing legal principles and statutory provisions which are relevant to enforceability of arbitration provisions in online agreements. Some of these principles are:
Enforcement of standard form contracts
Online contracts are standard form contracts in the sense that one party formulates the terms and it is not subject to negotiation. It is in the category of contracts that Eso JSC in Sonnar (Nigeria) Ltd & Anor. V. Partnreedri M. S. Norwind Owners of the Ship M. V. Norwind & Anor[21] described as contracts of adhesion. The parties are not equal and it is a ‘take it or leave it’ contract. Generally, standard form contracts are enforceable like any other contract. However, the courts have developed rules for their enforceability. For example, the court will interpret standard form contracts contra proferentem, i.e., any ambiguity will be resolved against the drafter of the contract.
Thus, if there are ambiguities in an online agreement particularly as it relates to the arbitration clause, such a clause will not be enforced by the court. This is consistent with existing principles for enforcement of arbitration agreement.
Common law principles of reasonability and Inequality in bargaining power
Enforcing a mandatory arbitration takes away the most important element of arbitration which is voluntariness and forces the party with less bargaining power to settle according to the dictates of the stronger party. This necessarily means that the court will seek to protect the weaker party.
For an arbitration contract to be enforceable, it must be shown to be reasonable. Where it is unreasonable or unconscionable, the clause will not be enforced. This may be the case where the arbitration clause stipulates that the venue of the arbitration shall be outside Nigeria and subject to foreign law or that the parties shall bear the cost of arbitration. The inference may be drawn that the drafter never intended the dispute to be resolved by arbitration in the first place and merely inserted it to prevent litigation[22]. With respect to cost, it will be difficult to justify such an arbitration clause where the value of transaction is so infinitesimal.
Notice
Notice is fundamental to enforcement of a contract created by one party. The area of law where our law has applied the principle is in enforcement of exclusion clauses.[23]
For a party to be bound by an online arbitration clause, it must be shown that the party had actual or constructive knowledge of the clause. It is almost impossible to prove that a consumer had actual knowledge because there is usually no indication of the existence of arbitration agreement on the website. Given the nature and legal significance of arbitration, a clickwrap or browsewrap is insufficient to create actual notice. A scroll-wrap may be able to create that presumption but even at that, what choice do users have. The question however is whether users can be construed to have constructive notice of the arbitration requirement since they knew or ought to have known there were important terms associated with the transaction. Across various jurisdictions, arbitration included in browsewrap agreements is rarely enforced because there is usually no active requirement of consent. Though clickwrap and scroll-wrap agreements are usually enforced in the absence of other considerations, it is submitted that constructive notice of arbitration is inconsistent with the essence of arbitration and would be a challenge in Nigeria.
Unfair Contract Terms and Public Policy
A fundamental doctrine of contract law is freedom of contract but this doctrine presumes parties can negotiate on an equal footing. This is not the case in consumer contracts where the supplier or service provider dictates the terms. In this fast-paced world of information technology, consumers have no time and are not expected to read the contract before clicking. Even when they read, they cannot negotiate the terms and are compelled by modern way of living to accept them. The online service provider, employing the services of sophisticated lawyers, takes advantage to insert clauses allowing it to alter the terms, impose unilateral obligation on the consumer and with respect to arbitration, limit the consumer’s right to access to justice.
Online arbitration clauses force an online user to arbitrate all matters, including consumer complaints and disputes and even when the value of the transaction cannot pay the transport to any arbitration venue. As already noted, some online arbitration agreements compel arbitration outside jurisdiction which effectively prevents the user from getting redress. Before the advent of e-commerce, the law in most countries recognized the need for protection of consumers. The application of general principles of law to consumer contracts is a major issue for online arbitration agreements.
Under the European Union Council Directive 93/13 on Unfair Terms in Consumer Contracts, there is a rebuttable presumption that pre-dispute arbitration clauses in consumer contracts are invalid. A consumer, whether online or offline can challenge an unfair arbitration provision because of unequal bargaining power. This is similar to New Zealand which has extended its statutory protection against mandatory arbitration clauses to all consumer contracts. According to Hausfeld[24], arbitration clauses are presumed unfair if the amount at issue is less than £ 5000 in the UK. France prohibits consumer arbitrations in purely domestic disputes. Arbitration clauses are prohibited generally in contracts concerning the sale of goods or services for private use in Sweden. Germany will not enforce a consumer arbitration clause unless it is in a separate, signed document or part of a fully notarized contract.
Prior to the enactment of the Federal Competition and Consumer Protection Act, 2018(FCCPA)[25], Nigerian law on the subject of unfair contract terms was largely based on common rules and contract laws[26] in some states of the Federation. These laws however were grossly inadequate. Sections 127- 129 and other provisions of the FCCPA embrace the general philosophical underpinning of unfair contract terms in consumer contracts. Though online arbitration is not specifically mentioned, the Act can be interpreted to bar or at least limit arbitration of disputes arising from consumer contracts.
The conclusion that can be drawn from the above is that the use of pre-dispute arbitration clauses in online consumer contracts is contrary to public policy in Nigeria. This conclusion is plausible because in arbitration, the Arbitrator determines the dispute substantially in accordance with the agreement of the parties. The agreement of the parties may subject the interpretation of the contract o the laws of other countries. This will deny the consumers mandatory legal protection under the FCCPA and other laws. Under the ACA, one of the grounds for refusing the enforcement of an arbitral award is public policy[27]. Public policy is also a factor the court can consider in determining arbitrability in stay proceedings[28].
Who Determines Enforceability Question?
This question is fundamental and goes to the root of access to justice in online transactions. Section 12 of the ACA[29] incorporates what is popularly called the doctrine of competence- competence in the realm of arbitration. In most arbitration agreements, parties also incorporate the doctrine. The doctrine is to the effect that the arbitrator has the power to determine its own jurisdiction, and the existence or validity of an arbitration agreement[30]. However, it is submitted that the court can use its discretionary power under sections 4 and 5 of the ACA to determine the question. Chances are that the online company will be the party resisting litigation by insisting on arbitration. Where a party challenges an arbitration agreement on the basis of the fact that he was not sufficiently notified of the existence of the agreement or that it is unconscionable, or that the insertion of the clause was deliberately meant to stifle his right to redress, clothing the arbitrator with the power to determine the issue defeats the ends of justice. One major issue with online arbitration agreement is that the users of the online services are almost invariably unable to take advantage of the arbitration clause considering the nature of their claim. Section 12 of the ACA cannot be interpreted in a manner that defeat a party’s constitutional right to access to justice.
The normative force of arbitration is in the agreement of the parties. Where a party alleges absence of consent, arbitration is drained of its nectar. A party should not be held bound by any provision of an agreement when there is no manifest assent. Within the dynamics of standard form contracts and considering the rules evolved by the court to narrow its ambit , insisting that a party must first submit to an arbitral forum just for the purpose of asserting the invalidity of the agreement, is cruel and a huge waste of time and resources. It may simply mean that the aggrieved party (customer) cannot ventilate his/her grievance which may be the goal of the insidious arbitration clause in the first place. Any law which aids a party in a deliberate attempt to escape liability by denying people access to court is unjust and unconstitutional. It is submitted that section 12 of the ACA is not intended to protect an arbitration clause that is unconscionable and contrary to public policy.
This is a serious challenge which calls for immediate legislative intervention. The wave of information technology is blowing without apology and in a few years, buying, selling and even provision of services would completely move online. The danger of section 12 of the ACA and similar provisions in arbitration agreements as they relate to online agreements are unimaginable.
Lessons from other jurisdictions
Nigerian courts are yet to make anypronouncement on the enforceability of arbitration clauses in online agreements. However, decisions from other jurisdictions are largely consistent with some existing principles in Nigeria which would be relevant to the consideration of the issue.
United States of America (US)
The authorities from the US suggest that courts are skeptical about online arbitration clauses and more likely to enforce clickwrap and scroll-wrap than browsewrap agreements. In any case however, enforcement of arbitration clause contained in them is contingent on the fact that the agreement must be conspicuous and sufficiently incorporated into the online transaction.
In one of the numerous challenges to Uber’s mandatory arbitration policy, the US Court of Appeal for the First Circuit ruled that Uber could not enforce arbitration on a class of plaintiffs that alleged violations of a Massachusetts consumer protection law. In Cullinane v. Uber Technologies, Inc.,[31] the court noted that to enforce arbitration clause in its Terms, Uber must show that it “reasonably communicated” the Terms of Service to users. The court held that the hyperlink to the Terms of Service was not sufficiently conspicuous to notify users of where to find the Terms[32]. Secondly, the court examined the language Uber employed to notify users that they could find the Terms of Service by following the link. The text of the notice was even less conspicuous than the link itself, as it was written in small, dark gray, non-bolded font against a black background[33].
Also in Ramos v. Uber Technologies, Inc[34]. Uber’s attempt to enforce its arbitration policy, was denied because Uber did not demonstrate that the plaintiff “clearly, explicitly, and unequivocally agreed” to arbitrate her claims when creating her Uber account[35]. On the other hand, in Meyer v. Uber Technologies (supra), the court held that the users were bound by the arbitration clause under California law because they are given ‘reasonably conspicuous notice’ of the terms, by voluntarily continuing with the transaction by clicking on a ‘Register’ or another similar button.
In Anand v. Heath[36] the Federal District Court in Illinois held on June 28, 2019 that a digital marketing company could not force a user to arbitrate because a “Continue” button on its website did not provide clear notice that clicking the button constituted assent to the hyperlinked terms and conditions that contained the arbitration provision’[37].
Canada
In Heller v. Uber Technologies Inc.,[38] the Ontario Court of Appeal held that Uber could not enforce an arbitration agreement because the arbitration clause was unconscionable at common law. The arbitration mandates that any dispute arising from the service agreement between Uber and Drivers will be resolved by arbitration in Amsterdam under the ICC Rules. The court noted that there was huge inequality in bargaining power and that it would be impracticable for a driver to exercise his rights under the arbitration clause. Uber’s argument that the issue ought to have been determined by the Arbitrator was also refused. Uber has since appealed to the Supreme Court[39]
The Future of Resolution of Disputes arising from Online Agreements
Recourse to the court for protection in every dispute arising from online agreement is impracticable and would frustrate online businesses. Beside the attempt to protect online users through traditional contractual legal principles and unfair contract terms in statutes, a more forward looking approach that will protect both the interest of online companies and users/consumers, would be needed. There is need for an effective dispute resolution framework for e-commerce.
Such a forward looking approach is already being implemented by the European Union with the passage of two innovative Directives on consumer dispute resolution[40]. The first is a directive on consumer Alternative Dispute Resolution (‘the ADR Directive’), which aims to, amongst other things, create awareness on ADR mechanisms and the availability of ADR entities for the resolution of consumer complaints. The second one is a regulation on consumer Online Dispute Resolution (‘the ODR Regulation’), which establishes a platform that aims to facilitate the resolution of consumer disputes arising from e-commerce in the EU. The ODR platform will link disputing parties with ADR registered entities. The United Nations Commission for International Trade Law (UNCITRAL) is also developing rules for ODR.
While we do not have to adopt developments in other parts of the world hook line and sinker, it is not too early for Nigeria, using its influence in the implementation of the Africa Continental Free Trade Agreement (AfCFTA)[41] to negotiate innovative consensus across Africa on the issue of online arbitration and dispute resolution. The AfCFTA presents a great opportunity for Africa to begin to think, not only about solving today’s problems but imminent problems of tomorrow. As Africa goes into rounds of negotiations, it is hoped that this issue and other related problems of e-commerce will be considered.
Conclusion
There is currently no reported Nigerian case on enforcement of arbitration clauses in online agreements. What is clear however from existing legal principles and persuasive authorities from other jurisdictions is that online companies need to review their arbitration provisions to ensure they meet the test of enforceability. It may not be enough to simply rely on the ‘click’, ‘browse,’ ‘hybrid’ or ‘scroll’ wrap agreements in their present form when it comes to enforcing arbitration clauses.
Companies wishing to rely on arbitration clauses in online agreements must ensure that the existence of the arbitration provision is sufficiently and conspicuously brought to the notice of users and that they are unambiguously and mandatorily required to consent to it[42]. There must be evidence of the notification. This may be achieved by automatically sending the agreement to the email provided by the user. Agreement buried in terms and conditions at the bottom of a webpage or hyperlink contained in obscure corners of the website where users are unlikely to see it will not be enforceable. The content of the arbitration clause must be reasonable and not oppressive or unconscionable.
Different
considerations would apply to consumer contracts which are now protected by the
FCCPA. Many provisions in online agreements including arbitration clauses may
be considered unfair under the Act.
[1]See the United States (US) courts’ classification of the terms in, Anand v. Heath, online at https://www.bloomberglaw.com/public/desktop/document/AnandvHeathNo19CV000162019BL242545NDIllJune282019CourtOpinion?1562518361, Fteja v. Facebook, online at https://scholar.google.com/scholar_case?case=12279872483928107605&q=fteja+v+facebook&hl=en&as_sdt=2003 and Meyer v. Uber Technologies, Inc., online at https://law.justia.com/cases/federal/appellate-courts/ca2/16-2750/16-2750-2017-08-17.html
[2] The convention wisdom on the advantages of arbitration is subject to debate in Nigeria where there are many hurdles to reaping the fruit of arbitration. See Elvis E. Asia, “Effect of Limitation Law on Enforcement of Arbitral Awards in Nigeria- A Review of City Eng. (Nig) Ltd V. FHA”, online at https://dnllegalandstyle.com/2019/effect-of-limitation-law-on-enforcement-of-arbitral-awards-in-nigeria-a-review-of-city-eng-nig-ltd-v-fha-by-elvis-e-asia/
[3] Cap A18 LFN 2004
[4] Some other states also have their arbitration law. It must be mentioned that there is a great debate on the constitutionality or otherwise of the Lagos State Arbitration Law. In Compagnie Generale de Geophysique v Dr Jackson D Etuk [2004] 1 NWLR (part 853) 20, (2003) LPELR-5516(CA), the Court of Appeal held that the ACA has covered the field and accordingly invalidated section 7(1) of the Cross River State Arbitration law. Another opportunity was missed by the court in Stabilini Visinoni Limited v Mallinson & Partners Limited [2014] 12 NWLR (part 1420) 134, 175 where the court refused to be ‘dragged down into a snake pit’.
[5] See section 34 of the ACA
[6] Section 4 & 5
[7] Section 7
[8] Section 29-31, 51-52
[9] Section 1(1) (b)
[10] Under the Lagos State Arbitration law, “writing” is more expansive and leaves no doubt that it accommodates such agreements. Section 3 of the law defines writing to include, data that provides a record of the Arbitration Agreement or is otherwise accessible so as to be useable for subsequent reference. ‘Data’ is defined to include information generated, sent, received or stored by electronic, optical or similar means, such as but not limited to Electronic Data Interchange (EDI), electronic mail, telegram, telex or telecopy.
[11] (2018) LPELR-46581(CA)
[12] The court may have gone too far in interpreting section 1(1) b of the ACA. Oral acceptance cannot provide a record of the arbitration agreement as required by the section. Both the offer and acceptance ought to be in writing.
[13] Section 258
[14] Electronic signatures are binding under section 17 of the Cybercrime (Prohibition, Prevention, etc) Act 2015.
[15] Dangote Farms Limited v. Plexus Cotton Limited (supra).
[16] See Anyeabosi V. R.T. Briscoe (Nig) Ltd (1987) 3 NWLR (pt. 59) 84 and Esso West Africa Inc. V. T. Oyegbola(1969) NMLR 194, Trade Bank Plc v. Chami (2003) 13 NWLR Pt. 836 Pg. 158 at 216-217 and CONTINENTAL SALES LTD v. R. SHIPPING INC (2012) LPELR-7905(CA)
[17] See sections 41, 51 and 84 of the Evidence Act. See also the cases of ROWAYE JUBRIL v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43993(CA), BRILA ENERGY LIMITED v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43926(CA), Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167 at 203 JUBRIL v. FRN (2018) LPELR-43993(CA), SDV (NIG) LTD v. OJO & ANOR (2016) LPELR-40323(CA)
[18] See section 2 of the ACA. See also B. J. EXPORT & CHEMICAL COMPANY LTD v. KADUNA REFINING & PETRO-CHEMICAL COMPANY LTd (2002) LPELR-12175(CA) and FOLARIN ROTIMI ABIOLA WILLIAMS v. CHIEF OLADIPUPO AKANNI OLUMUYIWA WILLIAMS & ORS (2014) LPELR-22642(CA)
[19] IWUALA v.CHIMA (2016) LPELR-40970(CA)
[20] L’Estrange v F Graucob Ltd [1934] 2 KB 394, Chagoury v. Adebayo (1973) 3 UILR 532 and Kotun v. Olasewere (2010) 1 NWLR (Pt. 1175) 411
[21] . (1987) LPELR-3494(SC)
[22] The general principles for enforcement of foreign jurisdiction clause will act as a guide in this regard. According to Oputa JSC, of blessed memory, to be effective the choice of law must be real, genuine, bona fide, legal and reasonable. It should not be capricious and absurd. He held that choosing German law to govern a contract between a Nigerian shipper and a liberian “shipowner” was capricious and unreasonable. see Sonnar (Nigeria) Ltd& Anor. V. Partnreedri M. S. Norwind Oners of the Ship M. V. Norwind & Anor (supra), P.44, Paras.B-E
[23] ARCHIBONG v. FBN PLC (2014) LPELR-22649(CA), Imo Concorde Hotel Ltd v Anya (1992) 4 NWLR Pt234 Pg 210, International Messengers Nigeria v. Pegofor Industries Ltd (2005) ALL NLR 234
[24] https://www.hausfeld.com/news-press/mandatory-arbitration-in-the-united-state-and-europe
[25] The Act was signed into law on February 5, 2019.
[26] See Contract Laws of Anambra and Enugu States, the Sale of Goods Laws of Lagos, Kaduna and Plateau States. There are also some relevant provision in Hire Purchase Ac and Sales of Goods Act
[27] See section 29 (2) and 52 (2) of the ACA
[28] See section 5(2) (a) of the ACA
[29] Section 19 of the Lagos State Arbitration Law of 2009
[30] See MOBIL PRODUCING NIGERIA UNLIMITED v. SUFFOLK PETROLEUM SERVICES LIMITED (2016) LPELR-40054(CA) and STATOIL (NIG) LTD & ANOR V. F.I.R.S. & ANOR (2014) LPELR – 23144 (CA)
[31] https://law.justia.com/cases/federal/appellate-courts/ca1/16-2023/16-2023-2018-06-25.html
[32] Similar conclusion was reached Metter v. Uber Technologies, Inc., where the court held that a pop up blocked the view of the terms of service. Available online at https://law.justia.com/cases/federal/district-courts/california/candce/3:2016cv06652/305247/39/
[33] See also older cases of Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D.Penn. 2007) and Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002)
[34] https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-28162.html
[35] See also the recent decision in Richard E. Scotti v. Tough Mudder, Inc., N.Y. Slip Op No. 29098, 2019 WL 1511148 (N.Y. Sup. Ct., March 29, 2019)
[36] supra
[37] https://www.lexology.com/library/detail.aspx?g=6e4064c2-8930-4149-9d5e-e9c1e7e3d377&l=8GSPQ2F
[38] 2019 ONCA 1 (Canlii). Online at https://www.canlii.org/en/on/onca/doc/2019/2019onca1/2019onca1.html
[39] https://www.lexology.com/library/detail.aspx?g=4edf3018-aa8d-49ce-b0ba-4ce98c517708
[40] Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) 2006/2004 and Directive 2009/22/EC, [2013] O.J. L165/63 and Regulation (EU) 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) 2006/2004 and Directive 2009/22/EC, [2013] O.J. L165/1. See https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0011 and https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32013R0524
[41] AfCFTA came into force on 30th of May 2019. Nigeria became the 53rd country to join the African Trade Area on 7 July 2019 after President Muhammadu Buhari signed the AfCFTA Agreement in Niamey, Niger Republic AfCFTA. The objective of the AfCFTA is to create a single liberalized continental market for goods and services, with free movement of persons, businesses and the establishment of the Continental Customs Union. The agreement will become the world’s largest free trade area since the establishment of the World Trade Organization (WTO) in 1994.
[42]
For example, the United Parcel Service (UPS) My Choice Service Terms in
the US now include a hyperlink to the UPS Tariff/Terms and Conditions of
Service and expressly inform the user that the incorporated document contains
an agreement to arbitrate. This followed litigation on the issue. See
Holl v. United Parcel Service, Inc. (4:16-cv-05856) reviewed on
Lexology at https://www.lexology.com/library/detail.aspx?g=23d03e0d-b78a-4c2d-ae44-10171b09b184
[i] Elvis. E. Asia is a Senior Counsel in Nigeria. Mr. Elvis can be contacted at elvis.easia@futurelawjournals.com, 09017163850
