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VOL. 80 PART 5 SEPTEMBER 2022
procedures are utilized, final awards are generally issued without an oral
hearing, based on the written material delivered to the arbitral tribunal,
within 30 or 45 days of the last written material received, depending on
whether the domestic or international rules are adopted.23
CONCLUSION
Niantic suggests arbitration agreements are more likely to be enforced
where:
1. they provide access to justice alternatives to consumers;
2. those alternatives are sufficiently described in the arbitration
agreement;
3. a link to the applicable arbitration rules (or information about
where they can be found) is provided to consumers;
4. the arbitration rules are streamlined (such as the expedited procedures
provided for in VanIAC’s newly implemented rules);
5. the arbitration procedure provides for modest filing fees; or
6. the party drafting the standard form contract agrees to cover all, or
at least a portion, of any related legal costs.
Practitioners should keep this guidance in mind when drafting arbitration
clauses contained in standard form consumer contracts. It is also recommended
that drafters consult with an experienced arbitration
practitioner who can assist in identifying the most suitable rules and
processes, as well as identifying any further guidance from the courts on
this issue.
ENDNOTES
1. Uber Technologies Inc v Heller, 2020 SCC 16 Uber.
2. Petty v Niantic Inc, 2022 BCSC 1077 Niantic.
3. Ibid at paras 7, 37.
4. Uber, supra note 1 at paras 2–3.
5. Ibid at paras 64–65.
6. Ibid at paras 93.
7. Ibid at paras 94–95, 97.
8. Niantic, supra note 2 at paras 7, 37.
9. Ibid at para 2.
10. Ibid at para 58.
11. Ibid at para 63.
12. Ibid.
13. Ibid at para 64.
14. Ibid at para 72.
15. Ibid at para 50.
16. Ibid at para 72.
17. Ibid at paras 11, 74.
18. Ibid at para 78.
19. Ibid at para 79.
20. Ibid at para 79.
21. Uber, supra note 1 at para 8.
22. Niantic, supra note 2 at para 76.
23. VanIAC Domestic Arbitration Rules, Rule 25(b)(i) and
26(a); VanIAC International Commercial Arbitration
Rules of Procedure, Appendix A: International Expedited
Procedures, A-7(a) and A-9.