Can we get an official statement about how the arbitration clause will be managed for foreign countries like European ones?

Question

DISCLAIMER: the arguments described in this topic have already been referenced in multiple posts, yet no official comment on the issue was made that I'm aware of. This post is being made to raise awareness of the problem and to prompt a direct reply from the company.

Also notice that while this is somehow related to the forthcoming implementation of GDPR, the following arguments can be extended to any conflicting local legislature that makes the arbitration clause invalid.

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As most readers will probably know by now, the recent TOS update introduced an arbitration clause, which wasn't exactly well received. Multiple users pointed out problems in the original implementation, with most of them being concerned about the opt-out process (30 days, originally requiring users to send in a physical mail).

I won't go over the same topic again, users not yet up-to-date should refer to the above links to get informed. What I am interested in is another somehow serious issue I see that doesn't seem to have yet been addressed or even acknowledged.

Multiple users have noted that the arbitration clause in its current state won't probably hold under many foreign laws. Most posts I found were referencing Europe, but I can only assume other countries may exist that are in the same situation.

As a reference, here are some interesting posts:

The arbitration clause won't hold for any visitors from Europe.

http://www.privacy-regulation.eu/en/article-77-right-to-lodge-a-complaint-with-a-supervisory-authority-GDPR.htm

(quoted from: https://meta.stackexchange.com/a/309845/274498)

Not going to hold up. Dutch Supreme Court confirmed 2012-09-21 in LJN BW6135 that arbitration is still covered by the right to an independent judge, as established in ECHR 1975-02-21, nr. 4451/70. Stack Exchange can't decide the rules themselves.

(quoted from: https://law.stackexchange.com/a/28183)

I could post some more examples if anyone is interested, but I think this two should already make the point.

So, while the problem has been referenced multiple times, I am not aware of any indication that the company has acknowledged the issue or has made any relevant statement on the problem.

I am therefore writing this post in the hope of getting an official answer. I am not a lawyer and I can't really estimate how accurate the claims that are being made are - but all the sources, with special mention of the question on Law.SE have been pointing in the same direction, so I am inclined to trust them for now.
Considering that StackExchange has users from almost every corner of the world, it is pretty weird to think that this same issue hasn't come up in any internal discussion.

Again, while I would prefer an answer that fully analyzes the problem, I would be fine even with a simple acknowledgment "we are working to sort this out".

Just please remember that the 30 days countdown is still clicking, the moon is still falling and the four giants are nowhere to be seen, so I fear that this is pretty urgent and can't be handled in the usual 6-8 time units.

Answer 1

We don't really need to acknowledge it as an issue if it isn't an issue for us. I can't think of a better way to say that because folks really feel like it should be an issue for us. And I know that's because they care and want us to succeed. And we love you, too!

I don't want to be that person that stands in front of a group of people and says lots of words that .. when you walk away .. don't really mean anything or answer any questions directly. I think we're all sick of seeing that kind of crud on the news (no offense to esteemed and highly regarded acronyms intended).

At the same time, it is very very difficult for me to speak to this without advising you. I will say three things, and these are the only three things I can say about it, and I hope you can all appreciate that:

• Opting out doesn't take away any of your rights, you can still seek arbitration if you wish. Opting out just doesn't force you to seek arbitration if an issue escalates beyond private talks with us over a matter. We recommend you opt-out if you have any concerns about arbitration as doing so will not limit your future options. We make an exception and advise this because we put that clause in there specifically to address woes.

• If you have concerns about the validity of something where you live, you should speak to a lawyer about it. I am totally down with fake lawyering with you about software licenses in an abstract sense, or pretty much anything else, but I don't take the place of a real lawyer if you have real concerns.

• I can't say if concerns surrounding parts of the ToS being applicable in certain areas are a cause for concern on our part. We reserve the right to update the document, and as I mentioned in the GDPR update, we anticipate some excitement in the world legal climate over the next year or so.

But please don't take that to mean that we're actively looking for ways to shoot lasers out of our eyes with more legalese; we're content with what we've got and we hope the coming years will mean minimal impact to our policies as stuff gets litigated and precedence is set.

We have lawyers, REAL ones, even. We'll be fine, and we'll continue to do our best to let our humanity shine through this muddy legal swamp that we're swimming through.

Sometimes, strategy means just do the minimum needed to avert the fates of others that got dunked in the murky waters and got eaten or all muddy, while keeping your eyes open to see if anything new with big jaws or tentacles lurks around.

And that's really all I can say; I hope it's enough.

Answer 2

As implied by Tim in the comment section on another related question, a new post has now been made that once again goes in detail about how the new ToS will be implemented.

Here is the link to said post.

Since the new ToS is expected to be publicly available by 25, May this means that until then any discussion about the new version of the arbitration clause is sadly just speculation based on the old "retired" one.

While I suspect that no form of arbitration clause can be rewritten so that it would hold up under most foreign laws, it is also plausible to think that the new ToS will dictate the clause only for US - based users.

Therefore, I have to conclude that we will have to wait for the new version of ToS before asking further clarification.

This answer is meant to be a placeholder until then. As soon as new info comes it this post and the answer will be updated to reflect the new issues or closed if the original concerns are no longer applicable.