29. In this litigation, I have not understood that it has been seriously disputed that the terms and conditions of sale were included in the distribution agreement in the three pages entitled „Policies and Procedures. The question raised by this appeal is whether there is a question as to whether section 9.2 (v) has been introduced, in particular the part of the clause that requires Utah to be the seat of arbitration proceedings or whether it is fair to think that it is binding on Ms. Kaye. 33. With regard to the circumstances in which the agreement was reached and the information provided to Ms Kaye, her lawyer, Mr. Jolly, testified in which he stated that Ms. Kaye had the impression, from the documents submitted to her, that the distribution agreement was governed by English law and that if nu Skin violated its conditions, she would have recourse in that jurisdiction. In addition, there would likely be a „catastrophic exodus“ if Nu Skin informed all its distributors that any dispute had to be resolved through arbitration in Utah. In this regard, Miss Kaye feels completely deceived. 38. In this context, the judge considered whether the clause was a clause available to Nu Skin and concluded in letter 10 that they could do so. In addition, there is no need to defer the complaint and to have other evidence.
He felt that the clear terms of the agreement spoke for themselves. 28. In both cases, I infer that the Interfoto principle applies to contracts that contain arbitration clauses, but in other words, the question of whether the arbitration agreement in question is unusual or incriminating and, if so, whether it has been brought to the attention of the other party in a fair and reasonable manner should be taken into account. 35. In all these circumstances, it seems to me that the practical effect of Article 9 is to exclude from an effective remedy a trader with modest means and whether he is both incriminating and unusual in such agreements. Furthermore, it seems to me that there is a real question as to whether Nu Skin drew Ms Kaye`s attention to point 9.2 (v) in a fair and reasonable manner. 27. At Sumakan v. Commonwealth Secretariat  EWA 243,  2 Alle ER (Comm) 23, another complaint that was brought at the same time as the Stretford case, the Court of Appeal considered a compromise clause that excluded the Tribunal`s jurisdiction within the meaning of section 69 (1) of the Arbitration Act 1996, and whether it insulted the interfoto principle as a matter of domestic law or under section 6 of the ECHC.
The court found that this was not the case. The exclusion agreement was not unusual or incriminating; it imposed a restriction on both parties` right of appeal; it did not rule out the right of the parties to file irregularities in the arbitration procedure before the courts and it was customary in a commercial context, when an arbitration procedure was agreed, to agree to limit the right of appeal. 13. The contentious distribution agreement is entitled „Independent Distributor Agreement United Kingdom/Ireland.“ The parties were Miss Kaye, Nu Skin Inc. and Nu Skin UK. He draws on his face that he is the distributor`s contract with Nu Skin Inc. as well as what is described as „Policies and Procedures“. It also says, „Please make sure you read and understand the content before sending this form.“ 42. Ms.
Kaye argued that the section 13 exclusion, paragraph 2, was limited to the arbitration agreement clause and did not apply to other arbitration implementation clauses and, in particular, to an additional agreement on the seat of arbitration.