Substantive Unconscionability
Terms so one-sided as to shock the conscience.
In the mass arbitration context this is arithmetic as much as principle: how many years the batching queue takes to clear, whether tolling actually protects the claimants standing in it, whether bellwether outcomes bind people who could not participate, and whether the drafter retained discretion the claimant lacks. Courts increasingly evaluate the protocol as administered rather than as drafted.
See also
- Procedural UnconscionabilityDefects in how the agreement was formed: oppression and surprise.
- BatchingA contractual mechanism releasing mass demands in fixed tranches rather than all at once.
- Bellwether Provision (Arbitration)A clause under which a small sample of arbitrations is resolved first, with results shaping or binding the remainder.
- Tolling ProvisionA clause suspending limitations periods while claimants wait in a batching or bellwether queue.
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