The Court of Appeal therefore had no problem establishing that the broad language of this agreement contained assertions before Salgado`s signature. But this is not the end of the story for Salgado and Carrows. The court does not order the case to arbitration. Instead, it referred the case back to the higher court to determine whether the agreement was applicable for other reasons. First, the employee stated that she was represented by a lawyer when the arbitration agreement was signed and that the lawyer did not have the opportunity to review the agreement. Salgado also argued that the deal was unscrupulous. However, the Court of Justice relied exclusively on the “retroactive” question. The court did not decide whether either of the two grounds was a basis for the refusal of execution, but referred the case to the court of justice for this decision. As regards the argument of retroactivity, the Court of Justice rejected this argument. The finality of the earlier decision was somewhat altered by the referral of the case to the court to determine whether or not the agreement in question was ruthless because of the applicant`s representation and related issues. The Bowers decision calls for caution in the preparation of arbitration agreements.
Clauses that allow employers to unilaterally and retroactively amend an arbitration agreement lead to the ineffectiveness of the agreement. As noted in Bowers, courts may review other documents such as a manual, acknowledgment of receipt or receipt or arbitration rules to determine whether the agreement is enforceable. Employers should also keep in mind that the Bowers Agreement was only signed by the worker and not by the employer, a factor that led other jurisdictions to refuse enforcement of arbitration agreements. . . .