Considering Uber Technologies Inc v Heller Under US Law

Abstract

Recently, the Supreme Court of Canada in Uber Technologies Inc v Heller used the unconscionability doctrine to strike down a pre-dispute arbitration clause in an Uber driver agreement that required arbitration in the Netherlands. This has led some to ask: How would a court in the United States analyze this case? This comment will address this question, giving due weight to the US Supreme Court’s trend toward strengthening the Federal Arbitration Act (FAA) and enforcing pre-dispute arbitration agreements in employment and consumer contexts. Nonetheless, this comment diverges from critiques of unconscionability’s flexibility and lack of clear definition—which allegedly threaten efficiency in contract law. Instead, the comment urges that unconscionability remains steadfast in US law to protect core human values. Unconscionability is not a frivolous gloss on classical contract law. Instead, it provides a flexible safety net for catching contractual unfairness. Accordingly, one could argue that under US law, a court would find the arbitration clause in Heller unconscionable. However, a US court may have provided a different remedy.

Keywords: Uber, contract, unconscionability, unconscionable, FAA, remedy, arbitration, pre-dispute, unenforceable