In the course of business and day to day experience, disputes and differential opinions arise from all sorts of sources. Be they companies or persons, it is seldom that all disputes can be foreseen and prevented. It is the manner in which parties resolve a dispute which bear the hallmark success of the agreement pending between the parties. It has become almost second nature for parties to a contract or agreement to enter an arbitration clause into the agreement. Arbitration to be premised on an expedient, more informal, and more inexpensive manner for the resolution of unforeseen disputes. Arbitration clauses can, however, not be glanced over and have as consequence requirements thereto.

A recent event, which quickly attracted virality, is the unfortunate passing of Dr Kanokporn Tangsuan at Raglan Road Irish Pub and Restaurant situated at Disney Orlanda. The facts are kept brief and are that Dr Tangsuan was deathly allergic to diary products and nuts. Dr Tangsuan attended to the Raglan Road Irish Pub and Restaurant specifically as it was known to be cautious in delivering allergen-free foods. It is alleged that after Dr Tangsuan explained her allergies to the wait-staff, and upon receiving her order again confirmed with the wait-staff that the food is made safe and allergen-free. Dr Tangsuan collapsed and went into allergic shock. She was rushed to the hospital where she passed away, the later law suit instituted stated the cause to be “a result of anaphylaxis due to elevated levels of dairy and nut in her system”. Dr Tangsuan’s widower, Mr. Picollo  instituted a wrongful death claim against the Raglan Road Restaurant and  Walt Disney Parks and Resorts Incorporated. The merits of the case being interesting enough, the more recent filing by Walt Disney Parks and Resorts Inc is of particular interest.

Disney filed a dismissal of the wrongful death claim. The reasons, as referred through the filing papers, are that the suing widower signed up for a Disney+ (Disney Plus) subscription some more than three years prior, along with him buying Disney tickets through a ticketing service. Particularly, Disney cordons their arguments on the contractual terms which Mr. Picollo accepted and agreed to through these transactions. The Disney+ subscription contained an arbitration agreement clause therein, where users of the service are obligated to utilise arbitration for disputes arising between users and Disney. The filing by Disney has recently been retracted, and the matter is set to continue through the “normal” American judicial system, which is intended to be before a jury of their peers.

The interests lie with the arbitration clause contained in the Disney+ subscription. To what extent could such terms be forced upon parties and in which contexts? To this effect the law regulating arbitrations should be canvassed. The Arbitration Act, 42 of 1965, brings clarity as defined that

“arbitration agreement – means a written agreement providing for the reference to arbitration of any existing dispute or any future dispute relating to a matter specified in the agreement, whether an arbitrator is named or designated therein or not.”

Although this definition is broad in nature, it has been processed and contained through the precedents laid down in cases before Court. The recent case of De Lange v Presiding Bishop of the Methodist Church (De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and Another (2015 (1) SA 106 (SCA)) contained the following explanation to arbitration agreements:

“The requirement that an arbitration agreement be in writing does not mean that it has to be signed or otherwise executed by both parties to the arbitration. All that is required is that the parties have agreed that the dispute in question, or all disputes of a particular character, be submitted to arbitration and that agreement has been reduced to writing. Thus it matters not that the agreement is concluded orally, provided that a written memorial thereof is produced. The important requirement is, however, that there has been an agreement to arbitrate the dispute that is in issue between the parties. That agreement arises contractually”

The relevant points, corresponding against the wrongful death claim against Disney, would be that when Mr. Picollo signed up for the Disney+ subscription it was not intended, expected or reasonably could be believed that the intention was held that a dispute non-related to the Disney+ subscription itself would also be obliged to be arbitrated. It is accepted that the specific provisios referred to by Disney through their filing was to the Disney Terms and Use agreement. After overview of the terms and conditions of the agreement, it contains a lengthy arbitration clause. The wording thereof to reflect

“You and Disney agree to resolve, by binding individual arbitration as provided below, all Disputes… “

Disputes are defined further as “includes any claim, dispute, action, or other controversy, whether based on past, present, or future events, whether based in contract, tort, statute, or common law, between you and Disney concerning the Disney Products or this Agreement…”

The very broad definition of disputes that must be referred to arbitration proceedings would encompass a wrongful death claim. It would encompass much of any dispute that could arise. The intentions of a party could not stretch to such an extent that foresight of a wrongful death of a spouse would also be intended to be arbitrated upon when you sign up for a streaming service. This however will not be adjudicated upon in the Disney case, and the American standing upon these ideals will not be reflected at present. It is a cautious approach to let matters play themselves out to review the findings at convenience afterwards. It can however be mentioned that, should this matter have been under South African jurisdiction, the position of Mr. Picollo would have had strong merits. The further importance of this case cements, always read the fine print.

Forcing Arbitration: reading the Fine Print