Unilateral variation clauses in Platform-User agreements
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Unilateral variation clauses in Platform-User agreements. / Hansen, Ole; Ritchie, Hamish George.
In: European Review of Private Law, Vol. 30, No. 6, 2022, p. 929-950.Research output: Contribution to journal › Journal article › Research › peer-review
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TY - JOUR
T1 - Unilateral variation clauses in Platform-User agreements
AU - Hansen, Ole
AU - Ritchie, Hamish George
PY - 2022
Y1 - 2022
N2 - Platform-user agreements generally seek to regulate long-term relationships in a highly detailed manner, whilst retaining the operator’s commercial capacity to maintain and develop the Platform. Accordingly, unilateral variation clauses are core elements of the private governance of platform ecosystems. Whilst the contemporary growth of diversity in platform structures can manifest in more diverse user terms, e.g. in integrated or collaborative platforms, the core capacity to steer the contractual relationship generally remains with the operator. This is arguably necessary for the business efficacy of digital platforms in an increasingly complex legal and economic landscape. However, despite their prevalence, such terms remain a borderline feature of contract law, challenging doctrinal conceptions of contract as a static, bilateral consensus and raising questions of validity and interpretation. Invalidity is only likely where terms breach explicit regulatory standards, or provide an imbalance that is unconscionable or unfair under established contractual doctrine. Whilst regulatory protections exist for some users at an EU level, these remain relatively formalistic and limited in scope. Nonetheless, validity does not imply unlimited use of unilateral variation clauses. Contractual interpretation is influenced by the regulatory framework, which imposes systemic expectations of general business conduct in digital markets, establishing standards of objectivity and appropriateness. In non-intermediary platform settings, where regulatory protection is more limited, interpretation inspired by principles of administrative law and derived from the nature and purpose of the contract may restrict the operator’s discretion. Though not unfamiliar to contemporary contract law, such standards are complex and outcomes will rely heavily on specific circumstances.
AB - Platform-user agreements generally seek to regulate long-term relationships in a highly detailed manner, whilst retaining the operator’s commercial capacity to maintain and develop the Platform. Accordingly, unilateral variation clauses are core elements of the private governance of platform ecosystems. Whilst the contemporary growth of diversity in platform structures can manifest in more diverse user terms, e.g. in integrated or collaborative platforms, the core capacity to steer the contractual relationship generally remains with the operator. This is arguably necessary for the business efficacy of digital platforms in an increasingly complex legal and economic landscape. However, despite their prevalence, such terms remain a borderline feature of contract law, challenging doctrinal conceptions of contract as a static, bilateral consensus and raising questions of validity and interpretation. Invalidity is only likely where terms breach explicit regulatory standards, or provide an imbalance that is unconscionable or unfair under established contractual doctrine. Whilst regulatory protections exist for some users at an EU level, these remain relatively formalistic and limited in scope. Nonetheless, validity does not imply unlimited use of unilateral variation clauses. Contractual interpretation is influenced by the regulatory framework, which imposes systemic expectations of general business conduct in digital markets, establishing standards of objectivity and appropriateness. In non-intermediary platform settings, where regulatory protection is more limited, interpretation inspired by principles of administrative law and derived from the nature and purpose of the contract may restrict the operator’s discretion. Though not unfamiliar to contemporary contract law, such standards are complex and outcomes will rely heavily on specific circumstances.
KW - Faculty of Law
KW - Contract law
KW - Private governance
KW - Validity
KW - Interpretation
KW - Platforms
KW - User terms
KW - variation
KW - standard terms
KW - digital contracts
M3 - Journal article
VL - 30
SP - 929
EP - 950
JO - European Review of Private Law
JF - European Review of Private Law
SN - 0928-9801
IS - 6
ER -
ID: 312767149