tegwick
11f2dc3a6d
Executes all remaining shared jurisdictions across both workplans: Germany/EU (deepened contract-law angle), US (deepened), UK (deepened), Argentina, India, China, Africa (South Africa + OHADA), and Asia-Pacific (Singapore, Japan, Australia) - 13 new history/ research artifacts. Highest-priority findings: - Australia's Unfair Contract Terms regime (expanded Nov 2023) covers standard-form contracts with any business under 100 employees/$10M turnover by default - the CUA is exactly such a contract, and most realistic Customers fall within this threshold. Unlike every other jurisdiction's consumer carve-out, this is not an edge case. - China requires a "foreign-related" contract even to select foreign governing law, subject to a vague public-interest override even then - confirms a dedicated China rider is needed for both the License/CUA and the Enforcement Partner Agreement, not a shared global clause. - India flatly prohibits advocate contingency fees (no exception gates, stricter than Germany) while explicitly permitting third-party litigation funding - the cleanest confirmation yet that the Litigation Funder/Local Counsel split-role model is both necessary and legal there. - Japan's Article 12 fee-splitting rule means even the split-role fallback needs jurisdiction-specific structuring - the first case where the workaround itself, not just the original mechanism, has an open compliance question. - Contingency Share ceilings vary widely where available: UK 50% (exact match), South Africa 25%, Argentina 35% (50% only with risk assumption), China 18% down to 6% on a sliding scale that shrinks as claims grow. - Recurring cross-jurisdictional pattern (Germany, EU, US via CCPA, Argentina): B2B governing-law/liability clauses are respected, but an individual/sole-proprietor Customer's consumer-protection status is the operative risk everywhere, not a one-off edge case. Updates specs/EnforcementNetworkConcept.md §8.1 with a full 12-jurisdiction findings table and three cross-cutting conclusions. Updates both V1C1 documents' Appendix A items (governing law, liability cap, data protection) with the most consequential findings. Both workplans now have only their human-gated synthesis tasks (T09-T10 / T10) remaining. Co-Authored-By: Claude Sonnet 5 <noreply@anthropic.com>
5 KiB
TRSL Jurisdiction Research: United States (Deepened)
Document status: Research artifact, Stage 0 (workplans/TREV-WP-0004-global-jurisdiction-research.md T02)
Not legal advice. Extends history/260729-TRSL-Jurisdiction-StandardTerms.md §3 (WP-0001-T05). Findings drawn from web research (searched 2026-07-29).
1. UCC unconscionability: a real but narrow check on the CUA's liability cap
UCC §2-302 lets a court refuse to enforce an unconscionable contract or clause, or limit its application to avoid an unconscionable result. The operative test asks whether, given the commercial background and needs of the relevant trade, a clause is "so one-sided as to be unconscionable" at the time of contracting. UCC §2-719 specifically addresses limitation of remedies and lets courts strike unconscionable limitations, particularly around consequential-damages exclusions.
Direct implication: specs/TargetRevenueCommercialUseAgreement-V1C1.md §14's fees-paid-in-12-months liability cap is a common, generally-enforceable commercial pattern in the US, but is not immune from an unconscionability challenge if a specific Customer relationship is unusually one-sided (e.g., a take-it-or-leave-it agreement with a very small fee relative to potential exposure). This is a real-but-narrow risk, not a reason to redesign the clause — courts apply this test as a backstop against extreme cases, not as routine scrutiny of ordinary negotiated caps.
2. Arbitration clauses: generally strongly enforceable, with a "surprise/unconscionability" exception
Federal Arbitration Act §2 makes written arbitration agreements "valid, irrevocable, and enforceable," with a strong federal policy favoring arbitration. The main exception found in this pass: at least one case held an arbitration clause in a software contract unconscionable and partly invalid where the clause was not seen by the purchaser until after purchase (a "surprise" or lack-of-notice problem, similar in spirit to the transparency concerns already flagged for German Transparenzgebot).
Direct implication: if a future V1.0 CUA adds an arbitration clause (not present in the current V1C1 candidate), it should be presented clearly and accepted before or at contract formation, not buried or introduced after the Customer has already committed — this is a US-specific but broadly-good-practice point that also happens to reduce Transparenzgebot-style exposure elsewhere.
3. Software-specific UCC coverage remains unsettled (Article 2B was never adopted)
The proposed UCC Article 2B, meant to directly address software licensing, was never adopted as a uniform article; some states adopted variants (Uniform Computer Information Transactions Act, UCITA) while most did not. This means software license enforceability in the US is a patchwork of ordinary contract law, UCC Article 2 (goods) applied by analogy in some courts, and state-specific software/technology statutes, rather than one settled framework.
Direct implication: the CUA's US enforceability cannot be evaluated against a single "UCC for software" standard — it should be assessed under general contract law principles plus whichever state's law is chosen as governing law (License Appendix A item 6 / CUA Appendix A item 1), reinforcing that which US state is named matters, not just that "US law" applies generically.
4. CCPA/CPRA: the B2B exemption is gone, confirmed
As found in the Germany/EU deepening pass (history/260729-TRSL-Jurisdiction-Germany-EU-Deepened.md §4), CCPA/CPRA's earlier B2B exemption expired January 1, 2023, and was not renewed. This applies regardless of which EU finding triggered the search — it's a US-specific confirmation that CUA §11's Data Processing Addendum needs to account for California-connected Customers on the same basis as consumer relationships, not exempt them for being commercial.
5. Summary for the WP-0004 feasibility matrix (T10)
| Question | United States |
|---|---|
| Liability cap enforceable? | Generally yes; UCC §2-302/§2-719 unconscionability is a narrow backstop, not routine scrutiny |
| Arbitration clause enforceable (if added)? | Strongly favored under FAA §2, but must be clearly presented at/before formation to avoid a "surprise" unconscionability challenge |
| Single software-specific statute to design against? | No — UCC Article 2B/UCITA was never uniformly adopted; assess under general contract law + the specific state named as governing law |
| CCPA/CPRA B2B exemption available? | No — expired January 1, 2023 |
6. Open items for T10 synthesis
- Which specific US state to recommend as governing law (the CUA currently leaves this fully blank) — California, New York, and Delaware are the commonly-chosen commercial defaults, each with different unconscionability and liability-cap case law depth; not resolved here.
- Whether to add an arbitration clause to a future CUA version at all, given it is not present in V1C1 today — currently out of scope, flagged only as a drafting consideration if added later.