The Czech Republic is gradually familiarizing itself with alternative dispute resolution (ADR) methods such as mediation or arbitration. Given that the average duration of proceedings in civil matters before Czech general courts amounts to a full 16 months, it is little wonder that these expeditious methods for settling disputes are appealing to us. ADR offers even more indubitable advantages compared to judicial proceedings, but also harbours significant drawbacks, especially if it is used improperly. Not least for this reason has the European Court of Justice found that arbitration clauses contained in consumer contracts are null and void. Czech courts, too, approach the issue with circumspection, in full awareness of the fact that the risk of a violation of basic rights in such relationships is immense. The Constitutional Court should therefore revise its current approach to the judicial review of arbitral awards (which is currently not permissible).
The state must ensure that nobody is forced to submit to arbitration. In disputes in which the parties do not enjoy the same bargaining position (i.e., if one party is substantially weaker), the risk that one party is pressured into accepting arbitration is relatively high; the state must therefore warrant that the weaker party’s right to due process of law before an independent court (as well as other constitutionally guaranteed rights) are preserved. For this reason, the option to enter into an arbitration clause should be principally ruled out in such cases.