united-states business arbitration
Is a party liable for damages stemming from contract concealment?
<p>Suppose a consumer signs contract of adhesion with corporation. Corporation represents that the contract will be available online at any time. Consumer doesn't make a copy, based on that representation.</p>
<p>Several years pass. Contract is not available online. Consumer, not in possession of the contract, proceeds to arbitration over a dispute, assuming arbitration is forced. Shortly before the hearing, after consumer has spent significant time and money, corporation discloses the contract -- no mandatory arbitration provision exists.</p>
<p>Is the corporation liable for the consumer's wasted time?</p>
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<p>EDIT:</p>
<p>From @ohwilleke's answer:</p>
<blockquote>
<p>In practice, this fact pattern is unlikely, because the consumer needs the relevant details from the contract to commence arbitration.</p>
</blockquote>
<p>Rule R-12 of the <a href="https://www.adr.org/sites/default/files/Consumer%20Rules.pdf" rel="nofollow noreferrer">AAA Consumer Rules</a>, which is oftentimes expressly incorporated into consumer contracts, requires that the business register arbitration agreements in a <a href="https://apps.adr.org/ClauseRegistryUI/faces/org/adr/extapps/clauseregistry/view/pages/clauseRegistry.jsf" rel="nofollow noreferrer">public registry</a>.</p>
<p>Say a large corporation has many different contracts containing arbitration clauses with materially different terms (e.g. choice-of-law), or perhaps no clause at all, and has registered those clauses in a misleading way, or failed to register some of them over time -- a consumer could easily file for arbitration with the wrong clause.</p>
<p>Concrete example: Some businesses have a pre-purchase contract and multiple post-purchase contracts (e.g. a clickwrap paperless billing contract). Those contracts are oftentimes not updated in lock-step, leading to conflicting terms.</p>

<p>No.</p>
<p>Arbitrating rather than litigating when not required to do so by contract is almost never considered to be a legally compensable harm as a result of pro-arbitration legal policies. The consumer would be required to continue arbitrating and couldn't change course at that point.</p>
<p>In practice, this fact pattern is unlikely, because the consumer needs the relevant details from the contract to commence arbitration.</p>
<p>Other examples of unavailable contracts are hard to compare. It is a fact intense analysis.</p>
