Except Apple is paying the arbitrator, so they are inclined to give them the benefit of any doubt. Not saying you can't win in arb, but it's an uphill battle.
Apple is paying the arbitrator because it's a requirement of arbitration.
Apple is happy to do this because even when the arbitrator decides they're in the wrong it'll 1) be much faster than court 2) be much less than a jury awards. There are pretty much 2 arbitrators in the US and so they can afford to lose a single client.
Its only uphill if you have an actually bad argument such as _just_ the statement "they broke our TOS.".
Wouldn't the company still need to show up and tell the judge that there is an arbitration clause?
Additionally (I am not a lawyer) arbitration does not override any court or have any authority unless authorized by a court. If a party does not cooperate with the arbitration, the other party still has to go to court to convince a judge that the arbitration was good and get the judge to enter a judgement against the noncompliant party.
If as a consumer, you agree to arbitration and it is grossly unfair, you can still go to court and the judge can decide whether or not to use the arbitrators ruling or make their own ruling. The other party would also have to convince a judge that their unfair arbitration was fair.
If the consumer sues in small claims court, then the company would need to petition the court to compel arbitration. Large companies (like Apple) sometimes expend what would seem like irrational amounts of money on lawyers to make a statement. So, I wouldn't assume that they would balk at petitioning to compel arbitration.
In terms of the arbitration itself, it is very hard in the US to get an arbitration award overturned. So, wouldn't bank on that.
Not necessarily it could be in a sane Legal environment ie not USA.
'The EU requires Member States’ courts to presume that the arbitration agreement in consumer contracts is an unfair term, if it was not individually negotiated by the parties after the dispute arose (see Directive 93/13/EEC of 05/03/1993).'
"this Agreement and the relationship between you and Apple shall be governed by the laws of the State of California, excluding its conflicts of law provisions. You and Apple agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California, to resolve any dispute or claim arising from this Agreement"
Steam for instance seems to impose arbitration but also has this:
"Disputes that can be resolved in small claims court or relate to the infringement of our intellectual property do not have to be arbitrated. You can opt out of arbitration within 30 days of accepting this EULA.
(d) Exceptions. As limited exceptions to Section 22(b) above, the following Disputes can be resolved in court and need not be resolved through arbitration: (i) any Dispute that can be resolved in small claims court (if it qualifies); and (ii) any Dispute involving the infringement or misappropriation of our intellectual property rights."
It works, because big cos almost universally settle. Attorneys cost many times more than your acc.
And another moment, small claims court judges are rarely some ideological cranks.