<論説>アメリカ契約法における非良心性法理 : 雇用契約にあらわれる仲裁条項を中心に  [in Japanese] <Article>The Doctrine of Unconscionability in the American Contract Law : Analysis of Arbitration Agreements in the Employment Contract  [in Japanese]

Introduction As in modern European societies, in the United States the principle of freedom of contract holds the premise that courts generally leave it up to both parties to evaluate the reasonableness of an agreement. Even so, there are some rules policing the agreement. Traditionally, an agreement was supposed to be reached by parties with equal bargaining power, but it often turns out that one party of superior bargaining power takes advantage of the other party of less bargaining power in the formation of a contract. The doctrine of unconscionability is worth focusing on for the rules policing the agreement in American contract law. Karl Llewellyn, principle architect of Uniform Commercial Code (UCC), described the UCC 2-302,Unconscionable Contract or Clause, "perhaps the most valuable section in the entire Code." Many scholars have attempted to discuss it because the provision lacks the definition of an unconscionable contract. American courts have been concerned with the doctrine of unconscionability before the enactment of UCC; the courts avoided enforcement of the unfair agreements and protected weaker parties. In this article, I would like to analyze several labor contract cases containing arbitration agreements in order to consider the contemporary function of the doctrine of unconscionability. In the United States, employment claims are quite often arbitrated in accordance with the arbitration agreements from 1990's. As a result, agreements to arbitrate future employment claims are challenged as well. In those cases, what factual and legal elements do the courts find unconscionable to pursue the fairness to employers and employees? Are there any different elements found unconscionable from other contracts containing no arbitration agreements? Accordingly, Chapter I of this article will introduce historical developments of the doctrine of unconscionability. Chapter II addresses the framework of unconscionability enacted in UCC and unconscionability cases decided around the enactment. Chapter III focuses on arbitration agreements in context of employment claims and analyze some cases. Thus, the article will be followed as : I. Historical Developments of the Doctrine of Unconscionability II. Unconscionability Enacted in UCC III. Arbitration Agreements in Context of Employment Claims