Consumer law sometimes struggles for respect or even recognition. This paperargues that consumer law is a relatively autonomous sub-discipline within thelarger body of contract law. It best uses broad substantive standards inter-relatedwith procedural norms and institutions rather than the more prescriptive andprecise rules of contract which courts apply on a society-wide basis. Thedevelopment of industry-based consumer dispute resolution schemes is used toillustrate this view. The paper argues for the preservation of the accountableautonomy of such schemes by protecting them from judicial review for mere errorof law thus maintaining their focus on the resolution of consumer disputes.
We are honoured to have been asked to contribute an essay to this volumededicated to the memory of David Harland. David will be sorely missed, not onlyby those who knew him as a good and loyal friend, but also by those interested inand writing about consumer law. He was a scholar who understood the importanceof asking fundamental questions, and of revisiting them from time to time. Thispaper attempts to do just that, but in a far inferior manner to that which Davidhimself would have achieved. Consumer law is still regarded in some circles as asubject looking for the privilege of independent existence, let alone respectability.Further, the introduction of large numbers of industry-based dispute resolutionschemes designed specifically for ‘consumers’ is viewed by many assubstantiating the case that consumer law really doesn’t exist as a serious subject,or at most is a Cinderella subject not justifying a place in the mainstream of law.We wish to suggest that consumer law can rightly be thought of as having its ownindependent existence and rationale, and that the development of industry-basedconsumer dispute resolution schemes is actually right at the centre of a correctappreciation of consumer law and its proper dimensions.
What are ‘consumer disputes’, and what exactly needs to be achieved in orderto ensure their ‘resolution’? What are the best processes to ensure such resolution?These fundamental questions are not adequately addressed in the growing numberof legislative, judicial and regulatory responses to demands for consumer protection. In this essay, we first identify what we understand by the term ‘consumer dispute’. We then develop an argument that consumer law, whereby
* Lecturer in Law, TC Beirne School of Law, University of Queensland.
** Sir Gerard Brennan Professor of Law and Head of the TC Beirne School of Law, University ofQueensland.
The authors wish to thank the anonymous reviewers for their comments and suggestedimprovements. All research, analysis and opinion are the responsibility of the authors.
consumer disputes are resolved, is a discreet component of the legal system. Inlarge measure this is because the successful resolution of consumer disputespresents the need for a particular kind of approach in terms of decision making. Weoutline four processes or techniques used potentially to confront and resolveconsumer disputes. We show they all have their problems. We therefore focus ona more recent response, the development of industry-based consumer disputeresolution schemes, which in our view demonstrates a more sophisticated understanding of consumer disputes and the parameters of their successfulresolution. They also help us to confront and deal coherently with the problem ofthe relationship between the rule of law and the just resolution of consumerdisputes. The effective resolution of consumer disputes requires a more nuancedoutlook than is available through the four traditional dispute resolution methodsoutlined, and that outlook is central to the structure and operation of the industry-based consumer dispute resolution schemes analysed herein. Those schemesshould therefore be supported, as they are crucial to the sustenance of a meaningfulsubject of study called consumer law, and efforts should be made to ensure thatthey are not taken over by any of the four more traditional types of disputeresolution. An examination of the case law on attempts to bring the schemes withinthe parameters of the law on quasi-judicial or regulatory bodies reveals exactlythese tensions. The resolution of consumer disputes requires a differentunderstanding of the standards to be applied and the method of adjudication to beused in their achievement.
1. What Are ‘Consumer Disputes’?
In order to answer this question, we might simply ask: who are ‘consumers’? Wemight then define their ‘disputes’ in terms of those with whom consumers contractfor the provision of goods or services.
The ‘consumer’ is not a creature known to the common law. In the absence ofa statutory insistence that they do so, judges have not attempted to define, or evendescribe in a collectively acceptable way, the characteristics of a consumer.Legislators in the 20th century frequently undertook the task of giving the termsome more precise definition.1 In a growing number of situations, statutes alsoextended hitherto exclusively ‘consumer’ rights to ‘small businesses’.2
Accordingly, rather than being purely functional or motivational in its definitions of consumer, that is focussing on the purpose for which the consumerparticipates in the transaction (‘personal, domestic, household’ or, morenegatively, ‘not business or investment’) statute law has focussed more and moreon the dimensions of relative power in connection with size, for example, the valueof the relevant transaction, the number of employees, asset base and turnover.
1 See, for examples, Trade Practices Act 1974 (Cth) s4B; Consumer Credit Code 1994 (Qld)s6(1)(b); EU Directive on Credit Agreements for Consumers 93/13/EC art 2(a) (and modifiedproposal art 3(a) E. Comm. 7 October 2005).
2 See, for examples, Trade Practices Act 1974 (Cth) (as amended by Trade Practices Amendment(Fair Trading) Act 1998 (Cth); and Australian Securities and Investments Commission Act 2001(Cth) s12BC (hereafter ASIC).
This developmental analysis provides greater clarity when examining thehistorical origins in the law of the special dealings with consumers and theirdisputes. It allows us to look beyond the absence of ‘consumer’ language in thecommon law and equity case law, and to examine matters from the standpoint ofsubstance rather than appearance. For example, in his essay in this journal, Ramsayobserves that the origins of consumer law can be found in the law of inequality ofbargaining power.3 At this point, however, we need go no further than repeat thatwe must all be sensitive to the multiple sources of ‘consumer law’.
2. What, Then, Is ‘Consumer Law’?
Is it possible, therefore, to understand the activity of the just, efficient, and, indeed,necessary determination of consumer disputes in a particular way thatdistinguishes it from the general body of settlement of contractual disputes withoutthereby undermining principles of certainty and consistency, and the rule of lawitself? Can the law respond to the problems encountered in consumer transactionswithout detracting from the integrity of the developed law of settling contractualdisputes? Terms such as ‘unconscionability’, commonly used in consumerprotection statutes and in the case law origins of consumer law, do present achallenge for the predictability which is crucial for the maintenance of generalcommercial practice, of which consumer activity is a part.4
Iain Ramsay suggests that the only answer lies in abandoning the idea ofconsumer law as part of a body of law which is an autonomous and independentsystem of values or norms. He argues, elsewhere in this journal, that consumer lawcan only be understood as regulation, replete with the political, social and economic consequences of that concept.5
Ramsay refers to the work of Gunther Teubner and Julia Black as supporting a‘decentered model of regulation’.6 Ramsay identifies the UK Financial ServicesOmbudsman as representing the ‘potential of a model of responsive law’, but hedoes not make a direct link to the work of Teubner or Black in that context.7 Oneof the present authors has referred to Black’s early work when discussing industry-based consumer dispute resolution schemes, arguing that she attempts, in the UKcontext, to:
address the doctrinal inconsistencies of the courts when dealing with self-regulatory associations by adopting jurisprudential approaches whichaccommodate both a plurality of legal sub-systems with their own internal normsand an overall system of legal accountability.8
3 Iain Ramsay, ‘Consumer Law, Regulatory Capitalism and the New Learning in Regulation’ in
this issue at 12, n13 referring to Gunther Teubner, Law as an Autopoietic System (1993).
4 Charles Rickett, ‘Unconscionability and Commercial Law’ (2005) 24 UQLJ 73 at 92.
5 Ramsay, above n3;Julia Black, ‘Decentring Regulation: Understanding the Role of Regulationand Self-Regulation in a “Post-Regulatory” World’ (2001) 54 CLP 103.
6 Ramsay, above n3.
8 Paul O’Shea, ‘Underneath the Radar: The Largely Unnoticed Phenomenon of Industry BasedConsumer Dispute Resolution Schemes in Australia’ (2004) 15 ADRJ 156 at 169.
Black draws heavily on Teubner’s theories to criticise the concentration by judgeson the issue of sources of power when considering applications for judicial reviewof decisions of self-regulatory associations.9 She argues that the concept of the‘autopoietic system’, pioneered by Teubner, can and should be applied to thedecision making role of self-regulatory associations. Such systems are ‘internallynormative’, but also ‘externally cognitive’ of the general law which applies tothem. 10 She thus clearly adopts a ‘reflexive regulation’ approach to understandingjudicial review of the decisions of self-regulatory associations, rejecting the moreinflexible approach she discerns in some of the English case law to be discussedlater in this paper. 11
None of the cases that Black considers, however, with the possible exceptionof R v Insurance Ombudsman Bureau; Ex Parte Aegon Life Insurance Ltd,12 areconcerned with an industry based consumer dispute resolution scheme. Certainly,Black is not considering consumer law as sui generis, or indeed any body of law,but rather, the capacity of self-regulatory associations, whatever their industrial,economic or social ambit, to make their own decisions, but still to be accountableto a consistently applied general legal system, a sort of accountable autonomy. Sheterms it ‘constitutionalising self-regulation’.13
In more recent work, Black is moving away from Tuebner towards his rival,Habermas.14 The latter is more interested in broader ‘communicative rationality’and the potential for overcoming the relative autonomy of socio-legal spheres.15This is not surprising given her support for judicial review of self-regulatorybodies in her earlier work. Our concerns are less about discourse16 in the publicspace than about the substantive resolution of consumer disputes, often anessentially private matter. The resolution of consumer disputes may havepotentially public consequences if aggregated over multiple disputes betweenmultiple parties or, as is more common, multiple consumers and the same industrysupplier, thus, quite properly, attracting the attention of regulators. It is ourcontention, however, that it is not their sole preserve and that consumer law is notmerely regulation.
Teubner himself, however, did consider the position of consumer law generallyand observed that while attempts by legal systems to ‘balance bargaining power’have had some success in the area of, for instance, labour law, ‘correspondingefforts at constructing systems of countervailing powers in other spheres, particularly in consumer protection law, have not fared so well.’ 17 Interestingly,
9 Julia Black, ‘Constitutionalising Self-Regulation’ (1996) 59 Mod LR 24.
10 Id at 24, 44.
11 Id at 24, 42.
12  IRLR 101 (hereafter Aegon Life).
13 Black, above n9.
14 Julia Black, ‘Proceduralizing Regulation: Part 1’ (2000) 20 Ox JLS 597 at 605 and 607.
15 Julia Black, ‘Proceduralizing Regulation: Part 2’ (2001) 21 Ox JLS 33 at 59.
16 Which increasingly dominates Black’s analysis see Julia Black, id at 35.
17 Gunther Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law andSociety Review 239 at 276–278.
Teubner sees some hope in the development of ‘semi-public institutions’ which‘provide consumer information and political-legal representation for unorganisedsocial interests.’18 The role of ‘state law’ as Teubner calls it, is confined to ‘coordination processes and to compel agreement ....(and to) resolve inter-systemconflicts by arbitrating claims across sectors and settling boundary disputes.’19
In Teubner’s ‘autopoietic system’, the decision-makers of a self-regulatorybody are free, to a greater extent, to apply specialised and particular norms in theirinternal decision making, but must also always be cognisant of or ‘have an eye to’the effect those decisions may have on the external legal system and its otheractors, as well as to the maintenance of their scheme’s own autonomy within sucha system. Structures and procedures may well need to reflect such externalcognition, whilst the substance of internal decisions and the flexibility of their laterapplication and the development of particular scheme based norms need not do so,or at least not to the same extent. This ‘same systems’ approach, with its capacityto accommodate both the development and application of flexible and autonomousinternal norms and external accountability to more consistent and certain laws, asinterpreted and applied by the general courts, might well explain entire bodies of‘law’ as practised by special bodies but within the legal system as a whole.
It is possible to identify ‘pockets’, ‘bubbles’ or ‘enclaves’, within and/oralongside the general body of law, where courts and legislators have accepted thatcertain internal norms and principles can apply in different ways from thoseattendant upon the less flexible rules of the wider and more generally applicablebody of law, such as, for example, the general law of contract. These enclaves willbe, internally, more autonomous with some degree of normative flexibility, butwill also be externally accountable to sets of more certain rules, such as, forinstance, the rules of natural justice in relation to the making of decisions.Consumer law, it is suggested, is best understood as one such enclave.
Another useful distinction in this context is that made, by Ronald Dworkin,between ‘rules’ and ‘principles’. Rules prescribe specific acts. They are, or shouldbe, capable of only one meaning in providing authoritative determination (thoughcapable of a number of interpretations in argument) and are intended to operate inan all or nothing manner. Principles, on the other hand, are often less prescriptive,less specific, normative in a more flexible manner, and capable of being givenrelative weight in particular situations. 20 We suggest that Dworkin’s analysis of‘principles’ provides, something more akin to the internal flexible norms of theTeubner-Black autopoietic system, and his understanding of ‘rules’ looks rathermore like the external norms of which such systems must be cognisant and towhich they are ultimately accountable.
18 These are the so-called ‘super consumers’ referred to by Michael Shames in ‘PreservingConsumer Protection and Education in a Deregulated Electric Services World’ in Moazzem Hossain & Justin Malbon (eds), Who Benefits from Privatisation? (1998) at 119–155.
19 Gunther Teubner, above n14.
20 Ronald Dworkin, Taking Rights Seriously (1977) at 27; and Richard Nobles, ‘Rules, Principlesand Ombudsmen: Norwich and Peterborough Building Society v The Financial OmbudsmanService’ (2003) 66 Mod LR 781 at 784.
This ‘inside out’ approach to consumer law need not be confined to legislative,regulatory or judicial considerations of the position of the consumer, and theirsubstantive rights vis-à-vis suppliers and traders. Indeed, we suggest that it mayalso be the best way to understand properly and to analyse meaningfully the roleof consumer law agencies such as industry based consumer dispute resolutionschemes.
Further, the position of consumer law, as we see it, whether realised in thecontext of industry based consumer dispute resolution schemes or not, isanalogous to that of the theory of Quantum physics which finds its physicalexpression only at the sub-atomic level. Newtonian physics with its predictablecertainties explains the visible ‘larger world’ but breaks down in the microcosm ofatoms, neutrons and electrons. At this level, probabilities take over not so muchundermining Newtonian principles but applying them in different more flexibleways. Just because a + b does not always = c inside an atom does not mean it neverwill nor that it won’t in the larger more visible universe.
Consumer law is a microcosm of the greater whole in which contextualuncertainties (like inequality of bargaining power) and the application of broadprinciples lead to the productive resolution of consumer disputes but not,necessarily, the making of law applicable to anything else. It is guided by thegeneral law, the way Quantum physics is influenced and guided by Newtonianprinciples, but not rigidly determined by it. Thus, consumer law becomes‘Quantum contract’ which can co-exist with contract law without undermining it,just as Quantum physics theory does not undermine the Newtonian explanation ofthe world at large.
The broad standards of behaviour which are the core of consumer law can bearticulated by legislation or the courts. Neither of these institutions, we argue, arebest placed to ‘flesh out’ the detailed variations of conduct either permitted orforbidden in all situations. This task is best done on a case by case basis alwayswith a mind to the resolution of the dispute rather than the making of rules. It isbest done by alternative dispute resolution (ADR) agencies like the industry basedconsumer dispute resolution schemes discussed later in this paper.
This approach is not only a way of understanding how consumer law can coexist within and alongside the general law of contract, and legal system generally,or even just the basis for an exhortation to the general courts to leave industry-based consumer dispute resolution schemes largely alone when it comes assessingconduct according to a standard of fairness. It also gives us a means of assessingthe appropriateness, potential effectiveness and perhaps even the legitimacy of allconsumer protection measures.
Consumer protection measures, which include statutory provisions,regulations, policy statements, mandatory and voluntary codes, that incorporateand purport to embody rules of fixed and general application, are less likely to besuccessful and effective as final solutions, and are thus more likely to be subject tochallenge in the courts. Those consumer protection measures which are moreavowedly values-based, using the tools of ‘principles’ or ‘guidelines’ and relying
on ADR style institutions for their application in the resolution of disputes, aremore likely to be successful, and to maintain industry and consumer support, andare less likely to be subject to court challenges.
Hugh Collins argues that a ‘transformed’ private law of contract can overcomenot only its own failure as an instrument of regulation but the weakness of ‘welfareor public regulation’ in its ‘command and control mode’ without confrontingTeubner’s famous ‘regulatory trilemma.’21 Part of this transformation is theincorporation of ‘references to externalities, public goods and the articulation ofpolicy objectives for regulation’ into its reasoning’. Further, a ‘transformed privatelaw of contract’ will adjust its procedures for dispute resolution, presumably by thecourts, to allow for ‘amicus curiae, standing to collective groups (consumer andindustry organisations), the admission of statistical evidence and using the burdenof proof for the purpose of detection of violation of regulatory standards.’22
We reply that at the level of consumer law, the realm of ‘Quantum contract’,the private law of contract is already transformed and continuing to transform inways that present less of a challenge to the overall legal system, and the generallaw of contract, than the ambitious project contemplated by Collins. Further, theADR schemes for the resolution of consumer disputes developed here and in theUK already incorporate the procedural adjustments he envisages and do so withoutthe trauma which these might present to the courts.
Let us take as an example the doctrine of ‘truth in lending’, which was a majordogma of the consumer movement in the 1980s and 1990s. In response to thiscatchcry, governments introduced legislation in the area of consumer credit whichrelied on disclosure as its chief means of consumer protection.23 In Australia, thislegislation is highly prescriptive and detailed, identifying with minute precisionexactly what must be disclosed and in what manner and format. 24 As a result,presently, even the simplest of consumer credit transactions is accompaniedby large quantities of documents detailing the salient features of the agreementseparately from their appearance in the clauses of the operative credit contract.
These disclosure prescriptions were backed by severe sanctions. The earlierCredit Acts in Australia,25 with their automatic civil penalty regimes, led to largequantities of expensive and complex litigation, the resolution of which oftenturned on highly technical points. It was often impossible to identify any actual‘loss’ to consumers as a result of the purported misstatement of the relevantinformation, and the rationale for the penalty was clearly deterrence of creditproviders, with any consequent distribution of moneys to consumers or into a trustfund being at most a secondary benefit. 26 Interestingly, although the Consumer
21 Hugh Collins, Regulating Contracts (1999) at 361; Gunther Teubner, ‘Juridification: Concepts, Limits, Solutions’ in Gunther Teubner (ed), Juridification of Social Spheres (1987) at 408.
22 Christine Parker, Colin Scott, Nicola Lacey & John Braithwaite ‘Introduction’ in RegulatingLaw (2004) at 9 paraphrasing Collins, above n21 at 93.
23 Explanatory notes accompanying the Consumer Credit (Queensland) Bill 1994 (Qld).
24 Currently, for example, Consumer Credit Code 1994 (Qld) ss14 and 15, and previously, the
Credit Acts 1984 (NSW, Vic, and WA) and 1985 (ACT) ss34, 35, 36, 38, 54, 58 and 59.
25 Credit Acts 1984 (NSW, Vic, and WA) and 1985 (ACT) ss34, 35, 36, 38, 54, 58 and 59.
Credit Code, 27 which replaced the Credit Acts, diluted the civil penalty regime (bymaking it no longer automatic, by reducing the number of disclosure breaches thattriggered the penalty, and by giving credit providers the benefit of a cap if theythemselves brought their disclosure breaches to the attention of the court), it stillmaintained the disclosure based approach.28 The ‘financial table’ mandated at thebeginning of each and every consumer credit contract is the Code’s most obviousand possibly dubious achievement.
A body of research is developing which calls into question the effectiveness ofthis approach. Empirical research has already demonstrated that consumers do notuse this information effectively, if at all.29 The work of behavioural economists isexplaining how this was always going to be so, 30 and consumer law specialists arenow calling for a new approach.31
Inequality of information is a natural feature of consumer transactions, particularly consumer credit deals. 32 Using the ‘inside out’ or Quantum contractapproach advocated earlier, it is arguable that the solution lies in legislation whichcalls for candour and openness on the part of credit providers in broad terms andleaves it to effective and accessible ADR agencies to determine, on a case by casebasis, whether a consumer has been actually disadvantaged by the failure of acredit provider to provide relevant information.
This is not an ‘all or nothing’ approach. It is, however, a way of testingtendencies. It may be necessary to provide a measure of rule-based prescription inlegislative form, which relies on disclosure as the best way to protect consumers.Some concepts lack adequate meaning without it. For instance, as AnthonyDuggan has written, ‘cooling off ’ periods are a consumer protection measuredirected towards reducing the inequality of effective information, particularly inhigh pressure sales situations. 33 It would be impossible to legislate for a ‘coolingoff ’ period without identifying its length. However, the effectiveness of the
26 See discussion in Anthony Duggan and Elizabeth Lanyon, Consumer Credit Law (1999) at 429– 430.
27 Consumer Credit Code 1994 (Qld).
28 Above n23.
29 Justin Malbon, ‘Shopping for Credit: Empirical Study of Consumer Decision-making’ (2001)29 ABLR 44; Paul O’Shea & Christopher Finn, ‘Consumer Credit Code Disclosure: Does it Work?’ (2005) 16 JBFLP 5.
30 Richard Thaler & George Lowenstein, ‘Intertemporal Choice’ in Richard Thaler (ed), TheWinner’s Curse: Paradoxes and Anomalies of Economic Life (1992) at 95; Michael Trebilcock,‘Rethinking Consumer Protection’ in Charles Rickett & Thomas Telfer (eds), InternationalPerspectives on Consumers’ Access to Justice (2003) at 70–75.
31 Elizabeth Lanyon, ‘Changing Direction? A Perspective on Consumer Credit Regulation’,Keynote address at the Australian Credit at the Crossroads Conference, 8 November 2004 at 16:<http://www.consumer.vic.gov.au> (4 February 2005); Iain Ramsay, ‘Consumer CreditRegulation as the “Third Way”’, Keynote address at the Australian Credit at the CrossroadsConference, 8 November 2004 at 16 <http://www.consumer.vic.gov.au> (4 February 2005).
32 Arthur Rogerson, Report of the Standing Committee of Commonwealth and States Attorneys-General on the Law Relating to Consumer Credit and Money Lending (1969) at 22–25; ThomasMolomby, Report to the Attorney-General for the State of Victoria on Fair Consumer CreditLaws (1972) at 12.
measure, for consumers, is obviously dependent on the conduct of the creditprovider or trader in its effective implementation and operation. For instance,timeshare sales contracts in Australia are subject to a 5 day cooling off periodmandated by legislation.34 The effectiveness of this provision is substantiallyundermined if, for example, consumers request information about the contractduring the cooling off period, but they receive no adequate responses.35 Theprovision is also rendered useless by the conduct of the trader if disclosure of theexistence of the cooling off period is buried in voluminous documents. Technicalcompliance alone does not aid the consumer. It is this type of detail that is best leftto principles based exhortations to act fairly and with candour. Detailedstipulations of conduct should be replaced, where possible, by general principles-based exhortations to act fairly, and it is ADR schemes which are better placed thanthe general courts to assess such fairness.
Another example is the exhortation to the parties to contracts to act in ‘goodfaith.’ Part of the law of insurance for hundreds of years, an implied duty of goodfaith had a limited if non-existent relevance to the general law of contract.36Teubner considered the implications of the adoption of the EU Unfair TermsDirective in the UK37 and suggested that the ‘good faith’ principle would not makesense to the English judiciary if it was presented as a ‘bundle of duties requiringtrust and co-operation.’ Rather, ‘good faith’ would have to be articulated as aprinciple which ‘outlaws certain excesses of economic action’ and the judgescould therefore understand it only by activating the ‘tradition of constitutionalrights’ and adapting them to the private law context.38 Luke Nottage questionswhether this is possible and points to the more prominent role of the UK Office ofFair Trading in the implementation of the Directive.39
The new Code of Banking Practice for the Australian Banker’s Association,incorporates an obligation on banks to act ‘fairly and reasonably’ and in a ‘consistent and ethical manner.’40 Given the mandate of the relevant ADR schemeto use this Code as one of its criteria for resolving disputes, the Banking and
33 Anthony Duggan, ‘Economic Analysis of Standard Form Contracts: An Exposition and aCritique’ in Ross Cranston & Anne Schick (eds), Law and Economics (1982) at 148.
34 ASIC Policy Statement 160.11: <http://www.asic.gov.au/asic/asic.nsf/lkuppdf/ASIC+PDFW?opendocument&key=ps160.pdf> (9 November 2005).
35 See Parliamentary Joint Committee on Corporations and Financial Services, Timeshare: ThePrice of Leisure (2005) at 59–60.
36 This is changing somewhat, see Paul Finn, ‘Controlling the exercise of power’ (1996) 7 PLR 86 at 93; For a more detailed discussion of ‘utmost good faith’ in insurance contracts see David Kelly & Michael Ball, Insurance Legislation Manual (3rd ed, 1995) at 96–97. For an exampleof its application by the relevant industry based consumer dispute resolution scheme see PeterHardham, ‘Panel Chair’s Report’, Annual Review 2005 Insurance Ombudsman Service Limited(2005) at 13.
37 For a discussion of the Unfair Terms in Consumer Contracts Regulations 1999 (UK) see PaulO’Shea ‘Alls Fair in Love and War but not Contract’ (2004) 23 UQLJ 226–233.
38 As explained by Luke Nottage in ‘Convergence, Divergence and the Middle Way in Unifying
or Harmonising Private Law’ (2004) 1 Annual of German and European Law 166 at 219.
39 Id at 221.
40 Clauses 2.2 and 2.3.
Financial Services Ombudsman will be answering the question of whether thisprovision imposes an implied duty of good faith in banker-customer contracts longbefore any court. 41 The ‘Quantum contract’ principle of ‘fairly and reasonably’,articulated quite broadly in the Code of Banking Practice, will only apply tocontracts effected by that Code, that is, consumer and small business banker-customer contracts. It will not effect the general law of contract and will be largelyarticulated, explained and applied on a case by case basis by ADR schemesresolving consumer disputes.
These schemes are not regulators, or courts, or self-help agencies or evenconventional alternative dispute resolution agencies. They reveal attributes of allthese categories of institutions, but do not neatly fit within any of them.