The Expansion of fairness-based business regulation - unconscionability, good faith, and the law's informed conscience

What are the major unresolved questions in unconscionability regulation and practice, who is affected, and what are the directions in which courts, regulators and litigants might go? This article addresses those key questions. Fairness-based business regulation now extends beyond the conventional reach of equity and the common law. One of its newest forms is manifested in unconscionability’s extension into laws governing trade practices, fair trading, financial services, corporations and commercial tenancies. That extension has connections with good faith too. Business and corporate conduct and mindsets must adapt accordingly, as must the analysis of legal advisers. While concepts like unconscionability and good faith are often more open-textured than other legal concepts, they have boundaries and legal advice must increasingly become more sophisticated in analysing and applying them to commercial actions. Debate still rages about which of the various meanings of unconscionability and unconscientiousness across multiple areas of law are picked up by statutory and judge-made law. ACCC litigation continues to test the boundaries of unconscionability laws, and ASIC has an important jurisdiction here too. Redefining those boundaries requires a mixture of doctrinal and jurisprudential analysis by judges and lawyers. This article maps some starting points and lines of argument for future advice and litigation on unconscionability.