a1 Professor of Commercial Law, University of Essex.
EU ‘general clauses’ on fairness offer significant potential for improved consumer protection. However, the Supreme Court has interpreted the unfair terms general clause and a related provision by reference to an underlying ethic of self interest and self reliance'; and the same approach is possible under the unfair practices general clauses. This is a significant threat to consumer protection. A more protective ethic may be intended at EU level; and a particular line of argument may be needed to persuade the Supreme Court of this.
Thanks are due to Professors Roger Brownsword and Hans Micklitz and to anonymous reviewers for comments on an earlier draft.