Arbitration

Arbitration is a legal mechanism that allows resolution of legal conflicts without litigation. This entails outside court processes and thus one of the alternative dispute resolution mechanisms. In the process, the disputers seek the guidance of a third party, who has no vested interests in the dispute to assist them in coming up with an agreement. However, the award, which is the decision reached by the third party, is legally binding upon the parties (Arthur 324).

Unconscionable agreements on the other hand are contractual agreements that are deemed to be unfair upon one party if they were to be enforced. Unconscionability has over time been used as one of the defenses against enforcing contracts. The basis of such a defense has mostly been lack of consideration, whereas, inadequate consideration has failed to be taken to be a defense so long as it is sufficient, as was upheld by the House of Lords in the Chappell & Co. Ltd  v Nestle Co. Ltd.

In the case of Robert and Raquel against Potamkin, what first stands out is the fact that the arbitration clause is unconscionable bearing in mind that it fails to comply to the basic requirements of an arbitration of there being two parties who seek a third party to arbitrate. From the facts, it's apparent that Potamkin Dodge, and the two had no prior arbitral issue, and thus the arbitration agreement was null and void ab initio. Thus, the arbitration is not binding on either parties.

Further, the two had no knowledge of English whether written or spoken. Though ignorance of the law has failed to be a defense in law, the rule ignorantia juris non excusat, like any other rule has it defenses and or limitation, more so since it's not viewed to be an offence mala in se. One of which is that such law as ought to be upheld need be communicated that all subjects to it understand. To this extent if the exemption in the agreement was legally binding, but not communicated to the parties, then such a law was inapplicable to the said parties.

To further their argument, the two could rely on fraudulent misrepresentation. Misrepresentation is where one party to a contract gives false statement to the other party. Misrepresentation can be; innocent, where the party misrepresenting the facts knows not of the truth, of which the court offers rescission as a remedy; negligent either by common law or by statute, or can be fraudulent. In fraudulent, the party claiming it can be offered a remedy of damages and rescission together.

Robert and Raquel can claim fraudulent misrepresentation due to the fact that Potamkin's staff knew that neither of them understood English and deliberately left out the information on the arbitration agreement. This is based on the fact that the staff knew of the facts and knew its implication yet failed to tell the two about it. This is dissimilar to the Thompson v LMS Railway case where the plaintiff couldn't read thus knew not of the exclusion clause as in this case, the plaintiffs aware of there inability to understand English, went ahead and asked for assistance in translating the contract to Spanish.

It's thus clear that Robert and Raquel have a claim to the full amount of the contract. Further to this, bearing in mind that all facts point to the fact that the contract was gotten into through fraudulent misrepresentation, the two can thus claim damages and rescission as a remedy.