Document Type
Book Chapter
Publication Date
2024
Subjects
Contracts, Unfair Terms
Abstract
What is the future of unfair contract terms regulation? To date, regimes of unfair terms regulation have shared several key operational features, but have diverged on the question of the scope of regulation: some regimes focus on consumer contracts or exemption clauses, while other regimes include all commercial standard form contracts. Both domestic and transnational commerce would be well served by broader harmonisation of unfair terms regulation. But divergence on the basic question of the scope of regulation has hindered such harmonisation. Some important recent developments suggest a possible trend towards regulation of a scope which includes all standard form terms in commercial contracts. However, these developments are not underpinned by rationales capable of inducing wider convergence on the scope of unfair terms regulation. That said, they do draw renewed attention to the rationales for unfair terms regulation, which the scope of regulation typically reflects. This chapter reviews and critiques the established rationales for unfair terms regulation. Greater harmonisation requires a new rationale capable of inducing convergence. Such a rationale is identified in a ‘regulatory failure’ that taints the standard form contracting process in the absence of unfair terms regulation. The new rationale calls for the scope of regulation to include all standard form terms in commercial forms. The rationale therefore confirms and facilitates the extension of the recent trend in that direction. It is therefore suggested that the future of unfair terms regulation is a harmonised scope that includes all commercial forms.
Citation Details
Marcus Moore, "The Future of Unfair Terms Regulation in Commercial Contracts" in Mads Andenas & Maren Heidemann, eds, Commercial Contract Law and Arbitration: From Assignments to Unfair Terms (London: Routledge, 2024) 212.