domestic law in effect prior to the UTCC Directive, consumers received substantially less protection than provided under the Directive.
207) Some English commentators also have noted that English courts generally adopt an extremely conservative approach to the issues of good faith and unconscionability and question the implementation of good faith by the UTCC Directive:
This suggests that the UTCC Directive may significantly impact, or in fact has already impacted, English law and, most importantly, aspects of what might be considered very basic contract law policy.
For example, it is hard to reconcile the position taken by the UTCC Directive with an interpretation of the principle of subsidiarity that would enhance diversity.
Consumer arbitration clauses are gray-listed under the UTCC Directive discussed earlier.
Finally, the UTCC Directive differs significantly from the United States regarding basic contract law policy.
Supreme Court and in implementation of the UTCC Directive also may affect available remedies.
If the UTCC Directive discussed earlier in the Article (286) were decided to be "better" in terms of protecting the perceived consumer interest, that fact alone is not dispositive on the "quality" of the legislative body enacting the legislation.
292) The UTCC Directive's gray-list approach recognizes the consumer concerns with arbitration as a means of dispute resolution by presumptively invalidating such clauses.
Some types of terms related to quality of consumer goods, which have a fairness dimension, are not addressed by the UTCC Directive.
See also Report from the Commission on the Implementation of Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts, COM (2000) 248 final, at 13 (noting that competition is distorted by the cost-externalizing effects of unfair terms, and that unfair terms lead to distortions in competition and lower quality prices and services) [hereinafter UTCC Report].
See UTCC Report, supra note 174, at 16-19 (account of black-list versus gray-list question in UTCC Directive debate).