Mr. Heller argued that the compromise clause was not applicable. The AA, not the ICAA, blames the agreement between the parties, Heller said, arguing that the civil courts had jurisdiction to examine the validity of the compromise clause, since the interaction between that clause and esa is a simple matter of law. Similarly, in this case, the issue of the unacceptable could be resolved by a cursory examination of the evidence. As a result, the courts were not required to leave the issue of jurisdiction to the arbitrator. The Court of Appeal correctly held that the compromise clause constituted an illegal attribution of ESA, since the clause was intended to prevent workers from imposing minimum employment standards through the procedures provided for by the legislation. The Court of Appeal`s finding that the clause is unacceptable is also, given the grossly unfair requirement that drivers in the Netherlands pursue an arbitration procedure whose ex ante costs (US$14,500) are disproportionate to the value of potential claims. In addition, it should be concluded that Uber knew that the agreement was one-sided, which allowed it to take advantage of its superior position vis-à-vis drivers. A key element of the decision is that parties who want disputes to be resolved through arbitration – particularly parties who enter into standard contracts through standard contracts – must ensure that arbitration rules do not impose serious difficulties or insurmountable procedural obstacles. “Respect for arbitration is based on the fact that it is a low-cost and effective method of dispute resolution. If arbitration is realistic, it is a dispute resolution mechanism.
(Heller, paragraph 97) With regard to the issue of the unscrupulous, Cété Brown agreed that the majority had unnecessarily broadened the scope of the doctrine. However, it found that even the less severe two-part test of the majority was not satisfied with the facts of the case in question. There is no basis for concluding that Heller could not have understood that his contract with Uber would have resulted in significant costs for dispute resolution. With respect to the nature of the agreement between the parties, it was unreasonable to assume that, because of the powers of the Court of Arbitration, Heller would have to travel to Amsterdam to participate in an arbitration procedure to ensure that the procedure was effective and inexpensive. In any event, the US$14,500 commission for the opening of arbitration proceedings for both parties was challenged, undermining the majority`s conclusion that the agreements in uber`s favour had been improperly weighted.