Document Type
Article
Abstract
With the explosion of the information age, the subject of many transactions has become what is known as “digital property.” The most obvious property of this sort is purchased every day in the form of software. However, unlike many forms of property, software is generally not sold; it is licensed. Also, as a result of the internet and the information age, the parties to a transaction may not even be from the same country. Software companies responding to the unique needs of the software developer attempting to protect his/her intellectual property rights have began to use a mass-market license attached to the front of the box in which the software is purchased. This license is generally referred to as a “shrink-wrap” license. These licenses contain terms which basically limit the uses to which a purchaser can put the software. As contract law normally requires mutual assent for a contract to binding, the term of the “shrink-wrap” license state that the opening of the cellophane wrapping on the boxed software will act as an act of assent, thus binding the purchaser of the software to the terms of the license. In short, the purchaser of the software has a take-it-or-leave-it contract where the simple act of opening the box binds them to the terms of the license. This is by definition, an adhesive contract.
These contracts, which arise in the absence of arms-length dealing between two equally powerful parties are not unknown in American law. Contracts of adhesion have been prevalent in American life for many years. Every time someone takes their clothes to the cleaners, they enter into an adhesive contract. Generally speaking, adhesion by itself, is not a sufficient basis for voiding the terms of the contract. However, the issue becomes more problematic when the contract is between parties which are of different nationalities, and when the terms of the contract include an arbitration clause.
Part II will give a basic background in arbitrability and what defines arbitrability. Part III of this paper will address the traditional view of arbitration taken by American courts in light of the Federal Arbitration Act. Part IV will address the international treaties which deal with arbitration and how the presumption of enforceability has seemed to arise under these international treaties. Part V will address the underlying issues of adhesion and public policy to determine if adhesion is even an issue which needs to be dealt with. Finally, Part IV will conclude in determining when adhesive arbitration clauses will be enforced in international transactions.
Recommended Citation
John P. Tomaszewski,
The Enforceability of Adhesive Arbitration Clauses in International Software Licenses,
3 J. Tech. L. & Pol'y
(1997).
Available at: https://scholarship.law.ufl.edu/jtlp/vol3/iss1/5