The law commission's 2012 issues paper on unfair terms: subverting the 'Europeanised' law on unfair terms

The UK approach to the demarcation of the unfairness assessment, as between exempted 'core' or 'price' terms and assessable 'peripheral' and/or contingent terms, under the Directive 93/13/EEC on Unfair Terms in Consumer Contracts (UTD), as implemented in the 1999 Unfair Terms in Consumer Contracts Regulations (UTCCR), has appeared in disarray following Abbey National. Hence, while the Department of Business, Innovation and Skills (BIS) seeks to introduce a new Consumer Rights Bill, the Law Commissions were asked to clarify unfair terms' law. This paper evaluates the Law Commissions' resulting 2012 Issues Paper 'Unfair Terms in Consumer Contracts: A New Approach' (hereinafter '2012 Issues Paper'), placing the unfairness exemption in its disjointed, 'Europeanized' context (section 2), attention then turns to Abbey National and the UTD/UTCCR interplay (section 3). The Law Commissions' 2012 Issues Paper, championing the need to correct the reach of the UTCCR, is then analysed (section 4). Finally, the paper turns to the implications of the 2012 Issues Paper (section 5).