The validity of an arbitration agreement in a service agreement entered into between a French national and a Spanish company must be assessed under Directive 93/13 CCE regarding the unfair terms that may be contained within contracts concluded between a professional and a consumer.
According to Article 3 of the directive, an arbitration agreement must have been “individually” negotiated between the parties. Evidence of this negotiation must be brought by the professional.
The use of a standardized arbitration agreement drafted in the contract by the professional or incorporated within the terms and conditions attached to the service offer is a strong indication that the obligation to “individually” negotiate the arbitration agreement has not been met.
An arbitration agreement that is invoked by a professional is therefore manifestly unfair where the professional attempts to invoke a clause that has not been “individually” negotiated against the consumer. By forcing the consumer to initiate proceedings before a Spanish arbitral tribunal and by excluding any possibility for the consumer to bring his/her case before state courts, such clauses create an imbalance between the rights and obligations of the parties. This situation lead to the nullity of the arbitration agreement in application of Article 1448 al. 1 of the French Civil Code.