Substantive Fairness in Australian Standard Form Consumer Contracts: Lessons from the UK Experience

2011 ◽  
Vol 11 (2) ◽  
pp. 171-195
Author(s):  
Philip Santucci
Keyword(s):  
Standard Form ◽  
Australian Standard ◽  
Consumer Contracts ◽  
The Uk

scholarly journals Contracting out of Access to Justice: Enforcement of Forum-Selection Clauses in Consumer Contracts

2017 ◽  
Vol 62 (2) ◽  
pp. 389-440
Author(s):  
Marina Pavlović
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Power Dynamics ◽  
Access To Justice ◽  
Power Imbalance ◽  
Contracting Out ◽  
Consumer Contracts ◽  
Substantive Justice ◽  
The Common ◽  
Consumer Relationships

Forum-selection agreements in consumer contracts nominate by default the business’s home jurisdiction to resolve disputes and thus directly impact a consumer’s ability not only to access courts, but also to obtain access to substantive justice. It has been argued that courts should consider enforcing jurisdiction clauses in consumer contracts with “greater scrutiny” because of their inherent power imbalance. To examine how the courts approach forum-selection clauses in consumer contracts, this article analyzed all reported consumer cases involving forum-selection agreements in Canadian common law jurisdictions between 1995 and 2016. The analysis of these cases shows that the courts have failed to exercise the greater scrutiny that was called for. In light of the analysis of the surveyed cases, this article argues that the rules for enforcing forum-selection clauses in consumer contracts ought to be recalibrated to reflect the power dynamics of consumer relationships, the ubiquity of standard-form contracts, and their effect on consumers’ ability to obtain redress. This article proposes two suggestions for reform: legislative intervention to invalidate forum-selection clauses in consumer agreements, and reframing and recalibrating the common law strong-cause test for the enforcement of forum-selection clauses in consumer transactions.

Mediation and Alternative Dispute Resolution

2021 ◽  
pp. 470-491
Author(s):  
Edwin Glasgow QC ◽  
Marion Smith QC
Keyword(s):  
Dispute Resolution ◽  
Construction Industry ◽  
Alternative Dispute Resolution ◽  
Standard Form ◽  
Civil Procedure ◽  
England And Wales ◽  
Industry Standard ◽  
The World ◽  
The Uk ◽  
Resolution Processes

This chapter focuses on alternative dispute resolution (ADR), which is used as a collective description of various methods of resolving disputes other than through the formal adversarial processes of litigation or arbitration. It emphasizes how ADR is now recognized in construction industry standard form contracts that provide for dispute resolution processes. It also mentions courts in the UK and throughout the world that support and actively encourage ADR, specifically in England and Wales that includes ADR as part of the Civil Procedure Rules (CPR). This chapter considers the use of ADR to assist in resolving disputes in the construction industry. It concentrates on mediation but also looks at negotiation and early neutral evaluation.

Changing Consumer Law in the United Kingdom after Brexit?

2021 ◽  
Author(s):  
Katharina Steinbrück
Keyword(s):  
Historical Analysis ◽  
Comparative Approach ◽  
Eu Law ◽  
Consumer Law ◽  
The Past ◽  
Binding Force ◽  
The United Kingdom ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The Uk

The extensive elimination of binding force of EU law in the area of consumer law opens up new regulatory opportunities for the UK legislator. This work addresses the question whether regulation of consumer credit and regarding unfair terms in consumer contracts which have been shaped by EU law should be retained or amended. A historical analysis answers the question as to which extent EU law has been shaped and received by the UK in the past. Based on a comprehensive comparative approach, the analysis also reveals whether alternative models of European cooperation offer more regulatory freedom and whether the (non-) implementation of consumer law could serve as a model for new regulation in the UK.

scholarly journals Unfair Terms in Standard Form Consumer Contracts

2021 ◽  
Author(s):  
◽  
Stephen Iorns
Keyword(s):  
New Zealand ◽  
Standard Form ◽  
Fair Trading ◽  
State Legislation ◽  
Consumer Contracts ◽  
Unfair Terms

<p>This paper explores the amendments to the Fair trading Act 1986 introducing provisions preventing the use of unfair terms in standard form consumer contracts. The amendments are drafted in close line with Australian federal and state legislation addressing unfair terms. This paper outlines the provisions, identifies two key differences between the Australian and New Zealand legislation, and argues that as a result of those differences the protection will not be effective. The ultimate conclusion reached is that consumers in New Zealand are now protected from unfair terms within standard form contracts in form but not substance</p>

scholarly journals Unfair Terms in Standard Form Consumer Contracts

2021 ◽  
Author(s):  
◽  
Stephen Iorns
Keyword(s):  
New Zealand ◽  
Standard Form ◽  
Fair Trading ◽  
State Legislation ◽  
Consumer Contracts ◽  
Unfair Terms

<p>This paper explores the amendments to the Fair trading Act 1986 introducing provisions preventing the use of unfair terms in standard form consumer contracts. The amendments are drafted in close line with Australian federal and state legislation addressing unfair terms. This paper outlines the provisions, identifies two key differences between the Australian and New Zealand legislation, and argues that as a result of those differences the protection will not be effective. The ultimate conclusion reached is that consumers in New Zealand are now protected from unfair terms within standard form contracts in form but not substance</p>

scholarly journals The Consumer Rights Act 2015 – a bastion of European consumer rights?

Legal Studies ◽  
2017 ◽  
Vol 37 (1) ◽  
pp. 78-102 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Member State ◽  
Digital Content ◽  
European Consumer ◽  
Consumer Rights ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The Uk ◽  
Informed Consumer ◽  
National Framework ◽  
The Eu

The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer rights?

Legal Liability in Standard Form of Contract

2016 ◽  
Vol 2 (9) ◽  
pp. 39
Author(s):  
Munnie Yasmin
Keyword(s):  
Consumer Protection ◽  
Bargaining Power ◽  
Standard Form ◽  
Legal Liability ◽  
Efficiency And Effectiveness ◽  
Consumer Contracts ◽  
The Law ◽  
Final Consumer

The validity of standard form of contract is not necessary to be disputed. Standard form of contract has become a business necessity in relation to efficiency and effectiveness. The aspect of problems arising in the standard form of contract is the aspect of imbalance position of the parties. Standard form of contract is potential to be abused by parties having stronger bargaining power. One of the forms of the imbalence is the inclusion of exemption clauses which aims to limit or release the liability of one of the parties. Currently, the rules governing the exemption clause exists only in the Law No. 8 of 1999 on Consumer Protection (LCP). Article 18 of LCP governing the standard form of clause is limited to the extent of prohibited form and content, and only aimed at final consumer contracts. In reality, the standard form of clause is also found in commercial contracts which are not only on final consumers but also midst consumers. Based on this matter, it is necessary to elaborate the liabilities of the parties and state in drawing up standard form of contacts.

The Emperor's Old Clauses: Unincorporated Clauses, Misleading Terms and the Unfair terms in Consumer Contracts Regulations

1999 ◽  
Vol 58 (2) ◽  
pp. 413-436 ◽  
Author(s):  
Elizabeth Macdonald
Keyword(s):  
Common Law ◽  
Standard Form ◽  
Legal Rights ◽  
Director General ◽  
Effective Protection ◽  
Legal Effect ◽  
Consumer Contracts ◽  
The Common ◽  
Unfair Terms

CONSUMERS frequently do not know of their rights and are unwilling to litigate. The powers of the Director General of Fiar Trading under the Unfair Terms in Consumer Contracts Regulations 1994 will often provide more effective protection for the consumer than common law rules. The powers are pre-emptive and enable unfair terms to be removed from standard form contracts, so that consumers simply cease to encounter such terms. Some protection may be provided for consumers by common law rules which allow a finding that clauses are not incorporated or that they do not have the legal effect which they may appear to the consumer to have. However, without knowledge or a willingness to litigate, consumers may be misled by such clauses and terms as to the legal rights generated aand they will not then be able to enjoy their rights to the full. This article examines the extent to which the powers of the Director General can be used to protect consumers from such misleading clauses and terms. It considers the interaction of the Regulations and the common law, the scope of the Regulations, and the application of the Regulation's test of fairness.

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