Being Conscious of Unconscionability in Modern Times: Heller v Uber Technologies

Abstract

AbstractRequiring low‐paid drivers to sign an Arbitration Clause removing their right to local court processes can be unconscionable and, if so, the clause is not enforceable. This was the conclusion reached by the majority of the Supreme Court of Canada when considering a contractual provision that mandated all external dispute resolution processes go through mediation and arbitration in the Netherlands and required upfront fees of $14,500USD to do so. In this case note, it is argued that the Canadian decision opens the door for the United Kingdom to rethink the role of unconscionability and how the doctrine could apply to modern contractual arrangements. Heller v Uber Technologies provides the opportunity to develop the elements of unconscionability in a way that tackles inequality of bargaining power in standard form contracts, particularly when they fall outside the protection of the Consumer Rights Act 2015.