The following post was originally published on the Ernesto Alvarado Blog https://linux-law.blogspot.com/ and is republished with his permission.

Before starting we have to remember that the arbitration clause is based on an agreement of the parties involved correctly written and signed. This agreement cannot be previously established by one of the parties in any way in order to be valid due to the fact that according to Venezuela’s arbitration laws it has to be discussed in a separate contract or clause. (See the 6th article of the Commercial Arbitration Act of 1998).

This is due to the fact that in Venezuela the nature of the arbitration contract is that of an adhesion contract and thus it can be revised by the competent administrative organ or by judicial revision. This arbitration clause can be established in an online contract or clause. The repeal Consumer Protection Act of 2010 had a section that regulated online, e-commerce, arbitration and adhesion contracts. Consumer Protection Act of 2010 regulated the issue in Article 8 paragraph 13 and article 32. The Venezuelan legislation states that in case of an arisen conflict between the parties of an e-commerce contracts agreed in Venezuela it must be resolved in favor of the user or the consumer if the clauses are doubtful to any party.

We will be discussing if reppealment of jurisdiction clauses agreed online and established between small and medium enterprise in Venezuela and foreign enterprises are valid in Venezuela. To analyze it we look at the principal law sources of the area in that issue they are the National Constitution of 1999, the Civil Procedure Act of 1990, Civil Code of 1982, Merchant Act of 1955, International Private Act of 1998, The Bustamente Code of 1928 and case law.

The constitutional law that regulates the area is established in article 23 and 257 of the National Constitution that states the possibility of use of an alternative medium of dispute resolution that is agreed in an online contract and established between a Venezuelan small and medium enterprise and a foreign enterprise. The International Private Act of 1998 established the order of application of law sources and states that the correct order to be applied by the National Administration and judges are International Public Law, in absence of laws regulating the area International Private Law is applied, in absence of them analogy and last but not least International Private Law principles and uses are applied