Doutrinas Essenciais – Novo Processo Civil

Doutrinas Essenciais – Novo Processo Civil

21. Unconscionability as a Defense Against Enforcement Of Arbitration Clauses In The Aftermath Of At&T Mobility V. Concepcion

Entre no Jusbrasil para imprimir o conteúdo do Jusbrasil




Investigadora em direito privado comparado, Universidade de Bologna, Itália.


Área do Direito: Internacional

Abstract: The study aims at analysing the consequences of the leading case of the US Supreme Court, AT&T Mobility v. Concepcion, on the use of unconscionability doctrine by state courts in order to decline the enforcement of arbitration agreements.Resumo: O estudo visa analisar as consequências do caso paradigma da Suprema Corte dos EUA, AT&T Mobility v. Concepcion, para o uso do princípio da abusividade pelo judiciário estadual como motivo para rejeitar a aplicação de cláusulas arbitrais.

Keywords: Unconscionability - Arbitration - Sliding scale - Consumer contracts - California state court - AT&T v. ConcepcionPalavra Chave: Abusividade - Arbitragem - Escala móvel - Contratos com consumidores - Tribunal estadual da Califórnia - AT&T v. Concepcion

Revista de Processo • RePro 272/399-418 • Out./2017

1. The doctrine of unconscionability: the traditional two-prong approach

The 1 classical contract theory assuming that the parties freely and equally enter into an agreement where there is no room for the intervention of the State 2 , found in Common law an exception in the well known doctrine of unconscionalibility, that in US received an official aknowledgment 3 , in Section 2-302 of the Uniform Commercial Code (U. C.C.) which reads:

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application ofany unconscionable clause as to avoid any unconscionable result.

(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose an effect to aid the court in making the determination.

A “test” for unconscionability is then provided for in the Official Comments to U. C.C. § 2-302:

The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. (...) The principle is one of the prevention of oppression and unfair surprise and not of disturbance of allocation of risks because of superior bargaining power.

Broadened beyond the sale of goods and referred to contracts in general by Restatatement (second) of Contracts 4 , the doctrine of unconscionability, after an initial esitation period, started to be applied by courts on the basis of the distinction of a “procedural” and a “substantive” unconscionability, following a conventional approach of invalidating a contract or provision only when strong evidence of both procedural and substantive unconscionability is present 5 .

Procedural unconscionability, related to the bargaining process and the relative bargaining power of each party, has been identified with absence of meaninful choice, use of standard forms without any opportunity to negotiate, unfair surprise, superiority of bargaining power 6 . The age, education and business sophistication of the party claiming unconscionability are frequently taken into consideration 7 ; substantive unconscionability, by contrast, has been referred to the terms of the contract and the unfair results arising from the transaction, such as overall imbalance, unfair price, unfair disclaimer, promoting default, waiver of defenses, acceleration of payments, and the repossession of goods without prior hearings 8 .

Controversial since its introduction in the UCC, the doctrine of unconscionability, just at the beginning of XXI century have been considered “a relic” of contract law 9 , due to the dominance of formalistic approach to contracts in judicial practice. However, in the meanwhile, the doctrine was entering into a new era, represented by the introduction of the so-called “sliding scale approach” through which courts made a significant departure from the traditional two-prong analysis, in order to justify judicial interference with a contract.

2. The “sliding scale approach”

As noted above, traditionally courts have applied the unconscionability doctrine through the two-prong test: either the Williams “absence of meaningful choice” and “unreasonably favourable terms” or Leff’s procedural/substantive dichotomy 10 . Nevertheless, this strict application has been mitigated by the …

Uma experiência inovadora de pesquisa jurídica em doutrina, a um clique e em um só lugar.

No Jusbrasil Doutrina você acessa o acervo da Revista dos Tribunais e busca rapidamente o conteúdo que precisa, dentro de cada obra.

  • 3 acessos grátis às seções de obras.
  • Busca por conteúdo dentro das obras.
Ilustração de computador e livro
12 de Agosto de 2022
Disponível em: