ABSTRACT
Algorithmic contracting has introduced unique complexities to the law. Deterministic algorithms and particularly opaque, non-deterministic machine learning and artificial intelligence systems, can exacerbate existing imbalances between contracting parties. In Quoine Pte Ltd v B2C2 Ltd, the doctrine of mistake could not resolve the dispute concerning algorithmic errors, which caused cryptocurrency trades to execute at 250 times market value. A review of equitable unconscionability in Australia, England, and Singapore shows the doctrine must be reshaped to meet the complexities of algorithmic contracting. We argue that statutory adaptations of unconscionability offer a promising path forward. The High Court of Australia’s application in Productivity Partners v Australian Competition and Consumer Commission of a ‘system of conduct’ under section 21(4)(b) of the Australian Consumer Law and the ‘sliding scale’ balancing of procedural and substantive unconscionability under section 2-302 of the United States Uniform Commercial Code provide potential avenues for addressing imbalances from algorithmic contracting.
Cheong, May Fong and Zou, Mimi, Resolving Wrongs in Algorithmic Contracting: Applications of the Doctrines of Unconscionability (2025) 48(4) University of New South Wales Law Journal 1399.
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