Forced arbitration is a terrible policy and terrible for consumers[1]. I remember when Al Franken fought to amend the "forced arbitration" policy in the Department of Defense Appropriations Act[2]:
"Jamie Leigh Jones is a courageous woman who stood up to KBR and Halliburton when they tried to force her into arbitration after she was allegedly gang-raped by fellow employees in 2005."
It's a way for corporations to avoid being held legally liable for criminal behavior against consumers and employees. So if Atlasssian screws you, either as an employee or a consumer, you're forced into arbitration instead of being able to challenge them in court.
Jurisdiction would be the pressing issue in that specific case. I do not believe bases were sovereign at that time, and as the parties are not military they would not be prosecutable under the UCMJ. I am not certain on the process to charge someone with a crime while in a different country and outside US jurisdiction.
I am not making excuses for KBR, but I do not know how else a corporation can protect itself from the actions of its employees in a scenario where jurisdiction is not enforceable in its host country. In other words what court would have heard this case, presumable it would have been Iraqi, in which case she would have had a much more difficult case.
Sorry if this was a ramble, but the issue is very complex and has little to do with arbitration requirements, and more to do with vague international prosecution policies inside a war zone.
NACA is not exactly unbiased, since it's mainly consumer class action lawyers.
They also make some claims that are not really true:
"Individuals often have to pay a large fee simply to initiate the arbitration process. "
Please pick any large company you desire to ever sue (amazon, ebay, general mills, etc). I challenge you to find a single one that requires you pay for the arbitration process in all but frivolous cases.
Let's take Amazon's:
"Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions,"
Paypal goes further, in fact:
"If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, PayPal will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive"
NACA's next complaint is that you don't get an in-person hearing, but at the same time complains about the expense of arbitration?
This is non-sensical.
Naca also makes some more falsehoods:
"Forced arbitration clauses generally bind the consumer—not the company. The way many forced arbitration clauses are written, the seller retains its rights to take any complaint to court while the consumer can only initiate arbitration.
"
Again, i've yet to see any of these. Amazon's doesn't.
Maybe paypal, that bastion of horribleness, says something here:
" You and PayPal each agree that any and all disputes or claims that have arisen or may arise between you and PayPal shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate."
Whoops, nope, they agree to arbitration bilaterally too
(they also agree to pay the fees)
They cite exactly zero examples of any of these claims, btw.
Part of my life is reviewing TOS'en, and i've got to have reviewed thousands. I have not seen any that are either unilateral, or where you would pay fees. All I ask is for one example :)
I also doubt such a thing would be upheld even under current supreme court precedent.
The rest of the NACA complaints basically come down "you can't take them to court". Which is yes, the point of arbitration.
To avoid the cost of court.
The truth is, NACA doesn't like arbitration because the lawyers involved in it are class action lawyers.
Shocking.
It says in the exceptions to arbitration that Dropbox still retains the right to take consumers to court for intellectual property infringement, but if Dropbox has a massive data breach and every private file you have shared becomes public, you're on your own facing Dropbox in forced arbitration.
Dropbox's ToS is one-sided because what Dropbox did was carve out the ways it would want to go to court and eliminate the ways most consumers would ever take it to court. Most consumers are not suing Dropbox over IP.
For another example of companies carving out justice for themselves, check out Wells Fargo. They say they will not initiate arbitration for debt collect (translation: they still have their right to take you to court if you owe them money) but if you want to hold them accountable for fraud and negligence, you are going to forced arbitration. https://www.wellsfargo.com/downloads/pdf/credit_cards/agreem...
One last thing on Dropbox's opt-out, why should you have to opt back into your constitutional rights?
Arbitration is private court where the judge is paid by your opponent. If you legitimately think this is awesome enough that we should all be gung-ho about it just because the companies who benefit choose to pay the fees, I don't think there's really anything else to discuss.
I guess linking to NACA was more to highlight some of the other downsides of forced arbitration. I agree with your counterpoints to NACA's claims but ultimately forced arbitration still prevents someone from using the justice system simply because it's too costly to the corporations. Again, cases like the KBR/Halliburton can have atrocious consequences.
Again the NACA link was to highlight the problems with forced arbitration. I wouldn't want it to detract from the fact that forced arbitration is a terrible policy.
"Jamie Leigh Jones is a courageous woman who stood up to KBR and Halliburton when they tried to force her into arbitration after she was allegedly gang-raped by fellow employees in 2005."
It's a way for corporations to avoid being held legally liable for criminal behavior against consumers and employees. So if Atlasssian screws you, either as an employee or a consumer, you're forced into arbitration instead of being able to challenge them in court.
[1]http://www.franken.senate.gov/?p=issue&id=211
[2]http://www.naca.net/issues/forced-arbitration