Is Uber acting unconscionably in Australia? Section 6 of Uber's Terms and Conditions for Australian customers requires that all disputes go to arbitration before the International Chamber of Commerce in the Netherlands and that the contract shall be construed under the laws of the Netherlands. It seems to me that this has the effect of shielding Uber from most claims for damages, such as property which is damaged while on a ride, since: It prevents a claim from being lodged in the appropriate small claims court; and The cost for hearing before the ICC is approximately $5,000; and Dutch law is significantly different to Australian law; and Uber refuses to discuss or entertain claims for damages and in my opinion is not acting in good faith; and The relative bargaining strength of Uber to set the terms and conditions if you wish to use their services. Is Uber acting unconscionably as defined in the Competition and Consumer Act in requiring claimants to first go through the prohibitively expensive ICC procedure? If so, is there any applicable case law or precedent? Is Uber potentially violating any other consumer protection or Australian or ACT law?
Under Australian Consumer Law (ACL) the test is not unconscionably; for standard form consumer contracts its unfairness: A court may declare a term ‘unfair’ if: it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; it is not reasonably necessary to protect the legitimate interests of the party that would be advantaged by the term; and it would cause detriment to a party if it was relied on. However, an important caveat is that a term that is specifically allowed by Australian law is not unfair. To clarify slightly, the dispute resolution clause in Section 6 requires mediation before binding arbitration, both under the respective ICC rules and both with their seat in Amsterdam under Dutch law. A few things to say to start with: Choice of law clauses are supported by Australian law. However, the Australian Consumer Law cannot be excluded by contract so the proceedings would be under the ACL first and Dutch law where the ACL did not apply. Mediation and arbitration are both supported (and encouraged) by Australian law, including agreeing on the seat, so those terms are not prima facie unfair. Limitations of Liability clauses (such as that under Clause 5) are also supported by Australian law so that is not prima facie unfair. However, there are a number of issues with the Uber ToS that may meet the threshold of 'unfair' and/or may breach the 'misleading and deceptive conduct' provisions in the ACL. In no particular order: The costs under the ICC rules of USD 5,000 are considerably more than the costs of using and Australian service like the AUD 1,000 charged by the Resolution Institute. Similarly, the seat being in Amsterdam is likely to &quot;cause detriment&quot; to Australian consumers. I am not alone in this view but it has not yet been tested AFAIK. s60 of the ACL impose a warranty that services will be rendered with due skill and care: damage that arises from this failing to happen cannot be excluded or limited by contract. Similarly claims for misleading and deceptive conduct cannot be excluded following the decision in Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246. The claim that Dutch law applies &quot;exclusively&quot; is patently wrong and therefore 'misleading and deceptive'. Even if Uber believes it (and I doubt their legal team does) misleading and deceptive conduct under ACL does not have a defence of genuine belief. the DISCLAIMER says &quot;UBER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS&quot; - they can't do this. Even though they say at the end &quot;... TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW&quot; this is unlikely to be sufficient to claim that the initial statement was not misleading. It hasn't yet been tested but if I wanted to bring a claim against Uber I would just go down the the Local Court and file a Statement of Claim - I would feel pretty confident that the magistrate would rule against them and that Uber would be unlikely to appeal.
Assuming there is a contract (and it is not clear that there is), this is a purported liquidated damages clause. Alice is trying to dictate what Bob will owe her if he breaches his promise to not share the file. However, there are limits on what can be stipulated in a liquidated damages clause. Super Save Disposal Inc. v. Blazin Auto Ltd., 2011 BCSC 1784: The enforceability of a liquidated damages provision in an agreement engages two competing objectives: freedom of contract versus the right of the courts to intervene in a given case to relieve against an oppressive or unconscionable result flowing from enforcement of the liquidated damages term. It is well settled that the enforceability of such a term turns on whether it is a genuine pre-estimate of the expected loss that a party will sustain in the event of a breach of contract or a penalty clause so oppressive or unreasonable that equitable intervention is justified to prevent an injustice. Judicial interference with a liquidated damages provision will be justified if enforcement of the term results in payment of a sum which is extravagant and unconscionable in comparison with the greatest loss that could conceivably be proved to have followed from the breach Oppressive liquidated damages clauses work against a person's freedom to breach and the possibility of efficient breach. Perhaps if the file were a trade secret like the Coke recipe, the $1,000,000 might be a genuine pre-breach estimate, but without much more information about the nature of the file, I predict a court would find the $1,000,000 to be extravagant and unconscionable in comparison to the greatest loss that could conceivably be proved to have followed from the breach. What follows is less researched. If it is not a contract then I think it is at best a licence, which would make Bob's agreement to pay $1,000,000 a free-standing unenforceable promise. I also agree with Matthew's position on the possibility (and limitations of) a claim in promissory estoppel, especially in jurisdictions following Waltons Stores or similar reasoning.
Under the law of common law contracts, posting a price is an invitation to treat and is not binding. However, in many jurisdictions, there may be (probably is) statutory consumer protection law that make this practice illegal. Whether this means the business must honor the price or merely makes them liable to prosecution and fines depends on the specific law. For example, in Australia the law refers to this as multiple pricing. The law requires that the business withdraw the product from sale until the multiple pricing is fixed (i.e. they take the poster down) or, if they are unable or unwilling to do this, they must sell for the lower price. If they do neither then they have committed an offence and are liable to be fined by the government; the consumer does not get any compensation.
Here's the thing: if the plaintiff/appellant/claimant are the same legal entity as the defendant/respondent, it's plain to see that one of them must lose. For instance, consider a case where two trains operated by the same corporation collide. Assuming that the drivers both performed their duties, the company is vicariously liable &ndash; such a case is frivolous and is likely to be thrown out for that reason. It's just a waste of time and money. Or your second example: If the woman was driving the city vehicle and crashed it in the course of her duties, it is the city that will be the defendant in the proceedings, not the woman. So essentially: while it's difficult to prove that something has never happened, these are good reasons to expect it would not happen.
The law that New York passed does not create any cause of action, it overrides existing rules regarding time-barring of civil claims, so the quick answer to the question &quot;does this law apply in that kind of case&quot; is &quot;that law is irrelevant&quot;. There is a general legal question about the jurisdictional limits of a court. For example, a foreign insurance company will be subject to specific personal jurisdiction in a US federal court over a claim under a cargo insurance policy for a shipment to the US. The case Daimler AG v. Bauman seems to be similar to the type of case you are asking about. This case involves the Dirty War of Argentina, and the question of whether Daimler's business connection to Mercedes-Benz Argentina gives plaintiffs standing to sue in US courts over actions in Argentina. SCOTUS held in that case that Daimler is not amenable to suit in California for injuries allegedly caused by conduct of MB Argentina that took place entirely outside the United States The court first notes that For a time, this Court held that a tribunal’s jurisdiction over persons was necessarily limited by the geographic bounds of the forum but this has been modified to recognition of two personal jurisdiction categories: One category, today called “specific jurisdiction”...[which] encompasses cases in which the suit 'arise[s] out of or relate[s] to the defendant’s contacts with the forum' [and] distinguished exercises of specific, case-based jurisdiction from a category today known as 'general jurisdiction,' exercisable when a foreign corporation’s 'continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.' The court observes that &quot;general jurisdiction has not been stretched beyond limits traditionally recognized&quot;. As I understand the hypothetical, the proposed wrong does not derive because of the defendant's connection with the jurisdiction, and the connection to New York (or any other state) would be that it might be forum convenient for the plaintiff to litigate in. This would fall under the category of &quot;general jurisdiction&quot; (assuming that New York is not the company's corporate home nor is it their primary place of business), and the state's courts would not normally have jurisdiction in that case (lacking any specific statute creating a cause of action and explicitly declaring extraterritorial jurisdiction). The underlying constitutional rationale is the Due Process consideration that a person (including a corporation) should not be be forced to defend themselves in courts in states where they have no real connection. The question that would be asked is whether the corporation had sufficient connection to the state that the state courts would have jurisdiction. We should also turn to three SCOTUS cases, Nestle v. Doe et al, RJR Nabisco, Inc. v. European Community and Kiobel v. Royal Dutch Petroleum Co., where questions of extraterritorial jurisdiction are considered. The Nestle court's analysis of the underlying principle starts by observing and citing from RJR Nabisco that First, we presume that a statute applies only domestically, and we ask &quot;whether the statute gives a clear, affirmative indication&quot; that rebuts this presumption. In Kiobel, the court states – reaching further back to Sosa v. Alvarez-Machain that [w]hen a statute gives no clear indication of an extraterritorial application, it has none, a principle which &quot;serves to protect against unintended clashes between our laws and those of other nations which could result in international discord) (EEOC v. Arabian American Oil Co). The relevant statute under which these suits were initiated is the Alien Tort Stature, 28 USC 1350, which allows an alien to sue in US courts under certain circumstances, and states only that &quot;The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States&quot;. ATS would clearly not be applicable to the case of a US person suing a foreign corporation, but the other cases have articulated a principle that transcends the specifics of the ATS – there would have to be a statute giving a state extraterritorial jurisdiction over the matter.
It is legal and quite common. Your choice as consumer is at the point of selecting insurance company. If you dislike ES enough, that would be a reason to select a different insurance company. It would be surprising if your ES contract disallows pharmacy pick-up, but even if it did, that would also be legal. This does not mean that the government doesn't have the power to break up Express Scripts, under anti-trust laws. There is no clear rule regarding how successful a company can be in attracting customers.
This is not illegal if the transaction has any relationship to the foreign country (this limitation is called the minimum contacts test). These agreements called choice of law or forum selection clauses are routinely honored. It usually isn't illegal for a clause to exclude a United States court as a forum as to the parties to the contract. The Restatement (Second) of the Conflict of Laws § 80 (1971), a source often relied upon by courts regarding common law rules upon which they have no binding precedents, states that: [T]he parties agreement as to the place of the action cannot oust a state of judicial jurisdiction, but such an agreement will be given effect unless it is unfair or unreasonable. This doesn't actually divest the U.S. courts of jurisdiction over the case, but does mean that if you bring the case in a U.S. court in circumstances where there is no reason that the clause isn't valid and applicable, that your case will be promptly dismissed, possibly with an award of attorney fees and costs against you for trying to evade a valid contractual provision. The law concerning the scope of a choice of forum clause's application, and who decides that question, can be somewhat involved, but in particular cases, where the existence of a binding contract is undisputed and no exceptions to the general rule upholding these clauses is present, the enforcement of a choice of forum clause is often uncontroversial. As Wikipedia explains (in the forum selection clause link above): In Future Industries of America v. Advanced UV Light GmbH, 10-3928, the United States Court of Appeals for the Second Circuit in New York City affirmed the dismissal of a case that sent the parties to Germany because the forum selection clause made German courts the exclusive forum. By contrast, the same court in Global Seafood Inc. v. Bantry Bay Mussels Ltd., 08-1358, affirmed the refusal of the lower court to refer the parties to Ireland because the clause was not exclusive, and the litigation continues in America. The state of New York has a statute expressly dealing with those circumstances under which a New York court may not dismiss a case on the grounds of forum non conveniens if the parties' contract provides that the agreed upon venue is a court in New York and if the transaction involved an amount more than $1 million. Currently, a U.S. Circuit Court split is emerging over whether forum selection clauses in a contract supersede pre-existing arbitration clauses in regulatory membership rules, such as FINRA. Statutory exceptions may apply in some cases. For example, under U.S. law, a provision allowing a debt collector to bring suit in consumer debt collection cases outside the place where the consumer debtor resides is void as a matter of public policy under the Fair Debt Collection Act. But, as a general rule, such clauses are not prohibited. Two of the leading cases upholding such clauses in U.S. law are M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 32 L. Ed. 2d 513, 92 Sup. Ct. 1907 (1972) (discussed in this law review article) and Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). And, although both of these cases were in the specialty of admiralty law there is no reasoning in these cases confining the holding of these cases to a maritime law setting. More law review treatment can be found here.
Barring any specific statute the relevant law is the tort of negligence. To succeed Alice must prove Bob: had a duty to Alice, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was, in law, the cause of the harm to Alice, and Alice was, in fact, harmed or damaged. She will probably succeed on 1, 3 and 4 where she will struggle is with 2. It seems that Bob did everything a reasonable person could do to avoid the accident. The only possible hope is that not knowing that bridges freeze first might be something a qualified NZ driver should know and that he breached his duty by not knowing if that is something the judge considers reasonable. The traffic warning is irrelevant and untested (and untestable) hearsay and should be excluded from evidence.