ONLINE ARBITRATION CLAUSES IN FOREIGN TRADE CONTRACTS AS A MEANS OF REALISING THE PARTIES’ AUTONOMY OF WILL IN THE DIGITAL ENVIRONMENT

Abstract

The purpose of the article is to determine the legal nature, form and conditions of validity of an online arbitration clause as an instrument for resolving foreign economic disputes in the electronic environment, and to establish the limits of party autonomy in a standardised digital space depending on the subjects involved. Methods. The study is based on the comparative legal method, applied to juxtapose the approaches of the United States, the European Union and Ukraine to electronic forms of expressing consent to arbitration, the formal legal (dogmatic) method, used to analyse the provisions of the 1958 New York Convention, the UNCITRAL Model Law and Ukrainian legislation on arbitration and electronic trust services, the systemic and structural method, employed to classify the forms of online arbitration clauses and the elements of their validity, the functional method underlying the assessment of the equivalence of electronic and written forms of the arbitration agreement, as well as the methods of analysis and generalisation of the case law of the Court of Justice of the European Union, the European Court of Human Rights, the Supreme Court of Ukraine and leading foreign jurisdictions. Results. The article substantiates the dual legal nature of an online arbitration clause, which is simultaneously a form of exercising party autonomy in the digital space and a procedural mechanism providing access to arbitration without the physical presence of the parties or the exchange of paper documents. The main forms of electronic expression of consent to arbitration are systematised, namely click-wrap, browse-wrap, incorporation by a hypertext reference and clauses embedded in smart contracts, and the relevant case law is analysed. It is shown that under the principle of functional equivalence the decisive factor is not the material medium but the existence of a reliable, accessible and reproducible electronic record of the parties’ consent. On the basis of the case law of the Court of Justice of the European Union, the asymmetry of standards between business-to-business and business-to-consumer relations is substantiated. The article also reveals the content of party autonomy as a fundamental category of private law combining the substantive and the conflict-oflaws dimensions, and demonstrates the specific features of its exercise in a standardised digital space, where consent is expressed through an act of adhesion to pre-formulated platform terms. The elements of validity of the clause, the phenomenon of a pathological arbitration agreement and the principle of its preservation are examined, and the practice of the Supreme Court of Ukraine concerning separability, the presumption of validity and the loss of the right to object to jurisdiction is generalised. Conclusions. Recommendations are formulated on the content of an online arbitration clause in a foreign economic contract, including the identification of the arbitral institution, the seat of arbitration, the language of the proceedings, the applicable law and an express reference to the admissibility of the online format, and the conditions are identified under which the advantages of such a clause can be realised without prejudice to legal certainty and procedural fairness. Amendments to Article 7 of the Law of Ukraine “On International Commercial Arbitration” concerning the electronic form of the arbitration agreement are proposed, together with a step-by-step algorithm for implementing an online arbitration clause in the contractual practice of foreign trade participants.