Case Analysis : The Arbitration Clause

1414 Words Sep 18th, 2016 6 Pages
Professor Callahan,
In response to your request, I analyzed reviewed Ms. Baker arbitration clause to see whether it is considered unconscionable.
California’s West’s Ann.Cal.C.C.P. § 1281 states that; “A written agreement to submit to arbitration current claims or claims arising after the agreement is valid, enforceable, and irrevocable, save upon such grounds as exist for the revocation of any contract.” Meaning, if Ashley’s arbitration clause was validly incorporated into her original contract, the only way to revoke the arbitration clause is through the same process it takes to revoke a contract. California 's West 's Ann.Cal.Civ.Code § 1670.5 gives the California court 's the power to; a) refuse to enforce all or part off the contract or terms that it finds unconscionable, as a matter of law, finds that a contracts or terms are unconscionable and b) afford parties the opportunities to present evidence to help determine the conscionability of the contract in court. If the arbitration clause is found unconscionable this statute will allow Ashley to terminate the contract. To find unconscionability in the arbitration clause two disparate/separate elements have to be present; 1) procedural unconscionability and 2) substantive unconscionability (American Software Inc. v. Ali, 46 Cal.App.4th 1386 (1996)). Both elements have to be present at the implementation of the arbitration clause for it to be found unconscionable (American Software). Procedural unconscionability is…

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