Earlier this week, when I was trying to access Netflix on my television with my kids, Netflix would not allow me to view any shows unless I re-acknowledged its terms of service (I have been a Netflix customer for years.) Because of my fascination with dispute resolution, I was curious whether Netflix’s terms included an arbitration clause, and so I proceeded to view the terms of service on my television screen while my children waited. There was no scroll down option when reading Netflix’s terms, and so I had to advance through the terms, screen by screen on my television, by pressing the next button. After viewing more than 50 screens of the contract (and facing increasing howls of complaints from my kids), I finally reached the arbitration section, which was rather detailed and tailor-made, compared to simpler arbitration clauses I have seen. (To be fair to Netflix, Netflix did allow me to click “I agree” without going through the inconvenient process of reviewing the entire contract screen by screen and trying to tune out howling kids.)

Netflix’s arbitration clauses (in section 7.4) allows for a court to engage in a de novo review of certain types of arbitral awards. In other words, you can go through the arbitration process, which is supposed to be binding and final. But under this provision of Netflix’s arbitration clause, you can then have a court hear the same issues anew without being bound by the arbitrator’s award, which is contrary to the finality traditionally associated with arbitration.

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