اتفاق التحكيم الدولي المبرم من خلال التطبيقات الإلكترونية : التعليق على قضية «سناب شات» أمام المحاكم الكويتية

Abstract EN

The mechanisms of agreeing on an arbitration agreement evolved with the de velopment of technology and the increased use of online Applications (i.e., Snapchat, Twitter, YouTube, etc.).

The Arbitration agreement were usually concluded or agreed upon in the presence of the parties with their knowledge and intentions.

However, with the increased use and reliance on websites and electronic applications, it is becoming more common for people to unknowingly accept an arbitration agreement with a sin gle click via an (I agree) button without reading the terms and conditions.

This is what happened in Kuwait when a citizen wanted to file a lawsuit against Snapchat and was surprised by the existence of an arbitration clause.

Snapchat argued that the Kuwaiti courts have no jurisdiction over the dispute.

Which prompted us to comment on this issue by explaining the viewpoint of the Kuwaiti courts towards validating these kinds of arbitration agreements by considering the capacity and consent of the user of the Snapchat application, and the extent to which this contract is considered a contract of adhesion or consumer contract.

Thus, considering the possibility where the courts can protect the weaker party by amending the terms of the contract and invalidating the ar bitration agreement.

We also address the validity of this arbitration agreement-which were agreed upon via electronic Applications - by determining the applicable law and the extent to which it is permissible to agree on arbitration clauses electronically and as to whether it is related to public policy or not.

As a result, it possibly determines the recognitions and enforcement of the arbitration clause or not, and whether the Kuwaiti courts have jurisdiction over this lawsuit or not.

We sum this research with a set of recommendations, beginning with the necessity of considering the intentions of individuals when they unknowingly accept the arbitration agreement by virtue of ac cepting the entire agreement, which highlights the need for applications to clarify the arbitration agreement, whether by writing it in bold or requiring a separate agreement specific to the arbitration agreement.

We also recommend that the legislator expressly state whether the law allows arbitration agreement to be agreed upon electronically or not, and whether the courts in Kuwait allow arbitration agreements in consumer contracts or not.