ABSTRACT
In recent years, there has been a proliferation of international consumer, employment and ‘gig’ economy contracts, many of which come with arbitration agreements. Although arbitration agreements are generally given legal effect, courts often refuse to enforce them on the basis of unconscionability if they are particularly disadvantageous to the consumer or worker. After surveying the state of the law of unconscionability in the United Kingdom (under English law), Singapore, Canada, Australia and the United States, we identify problems with the doctrine in the context of arbitration agreements, namely that its vague and confusing nature has the potential to undermine the doctrine of competence-competence, the predictability of arbitration agreements and ultimately the parties’ freedom of contract. As we suggest, these problems could, without legislative intervention, mark the end of arbitration in the context of consumer, employment and ‘gig’ economy contracts. We propose two ways in which courts could make the doctrine of unconscionability more manageable and less problematic: by requiring that the victim have an identifiable frailty and by clarifying that independent advice for the victim usually assuages inequalities. We conclude by arguing that each of these reforms is consistent with the five most prominent theoretical justifications that have been offered for the doctrine of unconscionability.
Gelinas, Fabien and Goldford, Zackary, Re-Thinking Unconscionability: Arbitration Agreements in International Consumer, Employment and ‘Gig’ Economy Contracts (March 1, 2023), Singapore Journal of Legal Studies, March 2023, pp 1-26.
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