Washington International Law Journal


John Adams


Despite the widespread use of end user agreements ("EULAs") within international e-commerce, their enforceability under Australian law has yet to be adjudicated. Legislative reform and judicial clarification of contract standards may be required for Australian courts to validate the methods of standard form contracting used in the digital age. While existing Anglo-Australian nules regarding contract formation may be adequate to enforce EULAs, the doctrine of privity presents an unnecessary and outdated barrier to the enforcement. Accordingly, the Australian legislature should abolish the doctrine of privity. In addition, Australian courts must clarify what type of notice is required for onerous contractual terms. Australian law also must develop standards for enforcing especially controversial clauses found within EULAs. Although exclusive jurisdiction and binding arbitration clauses have become increasingly important in international e-commerce, their enforceability against consumers in mass-market contracts presents troubling public policy questions. U.S. and E.U. law offer potential models for development of Australian law governing business-to-business and business-to-consumer adhesion contracts. Implementation of a stronger enforcement policy with respect to jurisdiction clauses in the business-to-business context, while maintaining a consumer protection approach for jurisdiction clauses in the consumer context, would be the optimal course of action for Australia. For binding arbitration clauses, Australia law should promote fair arbitration procedures for consumers by empowering judges to amend unfair aspects of consumer arbitration clauses.

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