Vol 7 No 1 - Roger Williams University School of Law

others, the Federal Trade Commission and the NationalAssociation of Attorneys General.91 For example, the failure ofUCITA to deal with such matters as prior online disclosure ofterms has been criticized as a failure to recognize applicablenorms in consumer protection.92Traditional contract law, in the United States and otherjurisdictions, has developed doctrines that allow courts to setaside contracts, in whole or in part, if their terms (or one of theirterms) are objectionable. Outside the United States, the lawappears to be more protective against the application of unfaircontract terms. The UNIDROIT Principles of InternationalCommercial Contracts is a prime example, barring theenforceability of terms in standard form contracts that are bothunreasonable and “surprising.”93 It is noteworthy that theUNIDROIT Principles are not consumer protection principles; bytheir own terms, the Principles apply only to commercialcontracts.94 Yet, this formulation for governing terms in standardform contract was rejected during the drafting of UCITA (and therevisions to Article 2 as well).95The European Union has enacted two regulations that giveadded protection to consumers, protection not similarly afforded inUCITA. The EU Directive on Unfair Terms in ConsumerConsumer-Friendly, 18 J. Marshall J. Computer & Info. L. 547, 581 (1999) (“If UCITAis to serve as an international template for licensing software, [it] should at leastincorporate some additional consumer protections.”); Saami Zain, Regulation of E-Commerce by Contract: Is It Fair to Consumers, 31 UWLA L. Rev. 163 (2000)(examining deficiencies in contractual approach, and in UCITA, with regard toconsumer concerns in e-commerce).91. See Letter from State Attorneys General to Gene N. Labrun, supra note 18.92. O’Rourke, supra note 73, at 653.Over the years, federal and non-uniform state enactments in the consumerprotection area effectively either preempted or modified parts of Article 2,reflecting emerging views of relevant differences between business-tobusinesstransactions and business-to-consumer transactions. Article 2B hasthe opportunity to incorporate consumer protection into its text, avoiding thelater preemption that characterized Article 2.Id.93. See supra note 87.94. UNIDROIT Principles of International Commercial Contracts (1994),Preamble, available at http://www.unidroit.org/english/principles/princ.htm#NR1 (lastvisited Nov. 17, 2001) (“These Principles set forth general rules for internationalcommercial contracts. They shall be applied when the parties have agreed that theircontract be governed by them.”).95. See, e.g., Speidel, Trenches, supra note 12; Rusch, supra note 12.