Christian Twigg-Flesner

Legal Scholarship has for many years discussed the potential of using software (or algorithms) to automate aspects of the contracting process, and there are some well-established instances of automation, e.g., in the financial sector. Thus far, these examples of algorithmic automation have not troubled courts around the world to any significant extent. However, with the recent advances in AI technology generally, and the growing interest in developing AI agents to automate a variety of tasks, this could soon change. In particular, once consumers start to use AI agents to automate some of their transactions, consumer law will be challenged by this new way of transacting. This paper seeks to explore this development and to argue that the recently adopted European Law Institute’s Guiding Principles and Model Rules on Algorithmic Contracts (the ELI DACC, or just the DACC) would provide a template for legislators around the globe to prepare domestic consumer laws for the advent of AI agents for consumer contracting. We begin by sketching the evolving AI agent landscape. We then provide a concise overview of the DACC. Next, we look more closely at some of the regulatory choices made in the DACC and why these are particularly innovative, before turning to a discussion of several principles underpinning the DACC. Finally, we analyse the potential risks of manipulation by and of digital assistants and the risks this would pose for consumers.

Subscription contracts are used widely, particularly in the digital economy. Nevertheless, there are significant concerns about the way in which consumers are often tricked into concluding a subscription contract, particularly through free trials or introductory offers; automatic renewals without reminders or an opportunity to terminate the contract; and confusing arrangements for terminating a subscription contract. Whilst the Unfair Contract Terms Directive can be deployed to challenge some aspects of these problems, with additional support from the Consumer Rights Directive and Unfair Commercial Practices Directive, there remain some aspects which require further legislative action. The EU has concluded that such action is needed in light of its Digital Fairness Fitness Check, and the UK has already legislated for the introduction of several new requirements regarding subscription contracts. These developments are all discussed in this chapter.

As there is now a reasonable prospect that some digital assistant applications might become available for consumer use, the question this contribution seeks to ask whether, and to what extent, their arrival will affect UK Consumer Law. Answering this has multiple aspects: first, fundamentally, there it will be necessary to analyse what this development would mean for the nature of consumer transacting, particular its impact on consumer autonomy; secondly, if analysing reveals that there is a need to introduce new legal rules, or modify existing rules, to capture any new features brought about by the use of digital assistants by consumers (or contract automation generally). Thirdly, there is a deeper question as to whether the fundamental assumptions underpinning consumer law are at least open for re-examination, e.g., the assumption that consumers are informationally disadvantaged. Furthermore, if new legal rules are required or at least desirable to deal with the consumer protection aspects of digital assistants, then thought will need to given as to the shape such rules might take. It will be argued below that the recent ELI DACC model rules are innovative and that they provide a template for developing UK consumer law. The DACC are a good example of how innovation not only produces technological advances but also provides an opportunity for innovation in shaping Consumer Law.

This paper examines several dimensions of obsolescence applied to consumer law, with a particular focus on consumer law. The extent to which consumer law in general might be obsolete is test by examining its scope of application, its underlying rationale, and its evolution as a derogation from general contract law. A second dimension is obsolescence within substantive consumer law rules, and several examples are considered. Finally, as a result of withdrawing from the EU, the UK has created a situation in which there is a real risk that consumer law could become obsolete through inadvertence. It has already fallen behind areas addressed in EU consumer law, and measures adopted in light of Brexit could inadvertently lead to the loss of existing consumer law provisions.

A team of legal scholars has drafted the ELI Guiding Principles and Model Rules on Digital Assistants for Consumer Contracts ("DACC") for the European Law Institute. The DACC seek to offer a set of model rules to enable the use of digital assistants, i.e., agentic systems for consumer contracting, whilst ensuring a high level of consumer protection. The Model Rules are based on 8 Guiding Principles. The DACC set out several detailed design requirements for digital assistant, model rules for the contract to supply a digital assistant, and several key rules in respect of contracts concluded through the use of digital assistants.