Arbitration in the Digital Age by Maud Piers & Christian Aschauer

Author:Maud Piers & Christian Aschauer [Piers, Maud]
Language: eng
Format: epub
Publisher: Cambridge University Press
Published: 2018-01-24T23:00:00+00:00

c) Contained in an Exchange of Letters or Telegrams, Article II(2) Option 2 NYC

Under Article II(2) NYC's second option, which does not require signatures,57 an arbitration agreement is in writing if it is contained in an exchange of letters or telegrams. Emails and web-based declarations are apparently neither letters nor telegrams, but the provision applies to emails by way of analogy: emails share the main characteristics of telegrams, as they are not physically transmitted and do not authenticate the sender's identity.58 The mere fact that telegrams necessarily materialize before they reach the recipient while emails materialize only if printed cannot be decisive in light of Article II NYC's aim to provide evidence for the conclusion of the arbitration agreement.59

Article II(2) option 2 NYC likewise includes click-wrap and browse-wrap declarations regardless of whether they employ means of encryption or authentication. It has to be noted, however, that Article II(2) option 2 NYC always requires an exchange of declarations. Such exchange exists if the website operator makes an offer that the customer accepts by clicking a button (click-wrap) or downloading a file (browse-wrap) or through similar means that are reported back to the website operator.60 Declarations are not exchanged if the website operator does not yet make a binding offer but only invites the customer to submit an offer that the website operator accepts by delivery of the goods or other conduct. Likewise, no declarations are exchanged if, in case of browse-wrap, no message is returned to the website operator.

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