The private international law regime of alternative and online cross-border consumer dispute resolution after the new European legal frame and the Spanich Act 7/2017 (original) (raw)
Related papers
IntechOpen eBooks, 2022
Consumer protection is defined as a field of study that protects individual consumers against unfair selling practices for goods, services, and digital content. The globalization expansion allows opportunities for increased sales and revenue but is also accompanied by considerable risk that impacts the protection of the economic interests of consumers. This, in fact, may involve misleading advertising and unfair contract terms in cross-border transactions. This paper analyzes the existing European Union ('EU') consumer rights protection legislation, including alternative online dispute resolution procedures. The paper also aims to provide a summary of the achievement in the area of consumer protection and internal market in the postpandemic era. At the same time, the goal of this paper is to present comprehensive coverage on the protection of financial consumers in cross-border disputes, especially in cases where the other party resides in a different country. Explanation are also provided on how the Italian legislative framework may be considered the best example of crisis management and resolution, by providing more confidence for consumers in cross-border transactions in the post-pandemic era.
2018
The last decades have seen the adoption of a number of European instruments that seek to facilitate court and out-of-court dispute resolution. While the use of European uniform procedures remains more modest, the benefits of out-of-court instruments in their various forms are largely undisputed. Nevertheless, the use of ADR and ODR mechanisms is unequally distributed across Member States and in some countries users continue to prefer court procedures. The development of various European instruments and the richness of ADR and ODR mechanisms can create fragmentation. The privatisation and intertwining of court and out-of-court procedures should not result in a decline of the quality of justice or a limitation of parties’ access to justice. This paper investigates the lines among which a comprehensive framework can be built to interconnect court and out-of-court procedures in order to facilitate access to justice and uphold a quality justice for consumers in cross-border claims.
F. Di Ciommo, O Troiano (eds), Giurisprudenza e autorità indipendenti nell' epoca del diritto liquido. Studi in onore di Roberto Pardolesi., 2018
* note added 26 april 2019 This article has been superseded by the recent paper 'The Fake Implementation of a Fake Consumers’ ADR Directive ', published below. I have left it here because it keeps some content that in the new work is missing. Moreover it develops some arguments that in the last edition were restricted. The main difference that this paper is mainly concerned with the positive meanuing of the rule on registration; the other treats this problem as a by product of the regulatory approach of the directive and is centrered on the relationship between law and regulation in private law. This paper discusses the role and effect of the registers of ADR Entities created under article 20 of the Consumer ADR directive. The ECJ decision C-75/16 seems to consider entry in these register(s) as a pre-requirement for the application of all principles of the Directive. This would create what has been defined a “hidden” restriction to their application to national and cross-border Consumer disputes in Europe. This paper analyzes the consequence of such restriction in the case of mandatory CADR procedures, looking at the model of the “reinforced” procedure adopted in Italy. Joint consideration of the European Court decision and of the national judgment for its execution, shows that the Court rulings about the detailed rules of the CADR directive (respectively, article 8 on legal assistance and article 9 on freedom of withdrawal) do not concern the nature of the mediation and its pre-requisites. They regard the limits of compulsory mediation and draw them, at first hand, from the constitutional requirements that protect the individual rights to access to justice and to effective judicial protection, within any kind of mandatory procedure. For this reason, the referred national judge declared that the CADR rule about legal assistance was “unavoidable” and applied it, even in absence of the certification requirement. In addition, the national provision that penalizes freedom of withdrawal, it is submitted, should not be applied to uncertified entities. The Court, in fact, confirmed the freedom of withdrawal on the same ground as the freedom of legal assistance. Both principles represent the constitutional conditions of consumer mandatory mediation; they cannot be derogated by operations on a list. This analysis of the directive in the hypothesis of compulsory CADR, confirms many doubts advanced about the actual interest that Entities may have to apply to its registry and about the general presumption, underlying the directive, that such certification would necessarily bring advantages and incentives to certified CADR Entities. At least in presence of mandatory mediation systems, this seems rather to be excluded. Mandatory ADR creates a legal monopoly that protects entities by ensuring them security of income, fiscal advantages, privileged means of enforcement of the agreements and less stringent procedural rules than those of the CADR directive. Finally, State law subtracts them to a large amount of the management costs required to comply with the huge amount of information duties established by such directive. Not all of these advantages will be available – in principle – to voluntary and some mandatory entities, even if “registered”. At the same time, these bodies operate to the detriment of compliant entities, where the certification advantages imply costly obligations of the entities to the parties and the Authorities. Where – like in the Italian case - the duty to complain is assisted by administrative and/or procedural sanctions it becomes a shield, that may create a “general” interest (even for the member State) to keep the bulk of the system outside the directive, by simply failing to enable any list or by setting consumer compliant entities down a different list. Finally It is suggested that generalization of the Court ruling, as a condition (also) of the rules of procedure between parties, extends the regulatory approach to the organization, control and information requirements, also to the application of the principles of procedure. The first aspect regards the relationship between the Commission, the Authorities and the Entities. It is mainly contained in Sect. 2 of the CADR Directive. The second concerns the individual position of the parties. Therefore, the content of the directive swaps from the protection of consumer rights in ADR proceeding, to the regulation of the” Industry” that should ensure it. The paper proposes an alternative reading of the directive that can overcome the antinomy between the organizational and the substantive rules. It closes with some critical observation about the regulatory approach to Consumer ADR directive, as applied also to individual rights of the parties.
The National Authority for Consumer Protection of Romania has recently completed the public consultation on the draft law on alternative dispute resolution between consumers and professionals. The law is intended to transpose the Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes (Directive on consumer ADR) into the national legal system. The Romanian authorities seem to prefer a centralized approach, completely excluding from the process the private ADR entities that already exist, such as mediators and organizations that provide mediation services. The financial and administrative burden of the procedure is generally attributed to businesses. The total cost of transposition is still unknown and a number of uncertainties arising from the wording of the Directive are perpetuated. The purpose of this article is to present some important aspects of the future law, with an emphasis on the main challenges that mediators and businesses will face in the near future if the law is to be adopted as such by the Romanian Parliament.
Zeszyty Naukowe Uniwersytetu Ekonomicznego w Krakowie
The purpose of this article is to undertake a legal analysis of the legal process of implementing Directive 2013/11/EU into the Polish legal order and to present the legal consequences of a failure to transpose the Directive within the prescribed period. In the first part, the author presents the description of work that has been done at the EU level on the alternative resolution of consumer disputes and evaluates the proposals for specific legal solutions presented in the course of this work. The author then presents the main issues and challenges associated with the process of the transposition of Directive 2013/11/EU. In particular, the author reflects on the direct effect of Directive 2013/11/EU, in both vertical and horizontal terms. As a result, the author concludes that the failure to implement the Directive in the prescribed period initiates the State's liability to an individual for damage caused by the lack of proper implementation and imposes on the national courts the duty of applying a pro-EU interpretation of national law. In turn,
Online Dispute Resolution The .eu ADR Paradigm
Romanian Arbitration Journal 2015 (9), Nr. 2, pp. 11-20
Over the last 15 years, domain name litigation has brought into light a number of issues related to conflict of laws, international jurisdiction, enforcement of foreign decisions, and other related aspects of international litigation. Bearing the above difficulties in mind, the EU has introduced a special online ADR procedure, for the resolution of domain disputes under the .eu code, which was initiated back in 2002 and became operative late 2005. Since 2006, the Czech Arbitration Court (CAC), entrusted with the .eu ADR, has published nearly 1000 decisions. The purpose of this paper is to present the proceedings before the CAC. Similar to the UDRP, the .eu ADR is a genuine model of online arbitration, dealing with cases in all official languages of the EU. It has its own rules and regulations, demonstrating its importance in minimizing applicable law and international jurisdiction litigation risks.
ERA Forum, 2015
This paper examines the transformation of the consumer redress landscape in the EU and the impact that the Alternative Dispute Resolution Directive 2013/11/EU will have on three radically different redress cultures: Italy, Spain and the UK. In particular, this paper critically analyses the current regulation of the main ADR schemes and proposes key changes to improve the provision of redress in these jurisdictions. The paper also examines how these schemes can ensure an adequate coverage in the provision of consumer redress by fleshing out the procedural grounds set in the Directive upon which ADR entities can rely when refusing to deal with a consumer complaint. It argues that while the Directive creates an opportunity to increase the availability and awareness of quality ADR entities, it also poses the risk of undermining consumer trust in the whole ADR system if greater competition between ADR entities leads to forum shopping, traders refuse to participate in ADR processes and if procedural restrictions are not adequately monitored.
In Amazon the CJEU decided which conflict rules applied to a claim in collective proceedings that was initiated by a consumer organization to prohibit allegedly unfair terms in the general conditions of a seller. The terms were used in electronic b2c contracts, where the seller targeted consumers in their home country. The CJEU distinguished between the conflict rule concerning collective action, Article 6(1) Rome II, and the conflict rule concerning the fairness of the term, Article 6(2) Rome I. In addition, the CJEU introduced a new test to assess the fairness of a choice-of-law term under Directive 93/13 on unfair contract terms. In the note, it is argued that the CJEU’s distinction between those two conflict rules is unnecessary and that the test that the CJEU formulated to assess whether a choice-of-law term is unfair, is less favourable to the consumer than the tests formulated in prior decisions.
SSRN Electronic Journal, 2000
A 60 month European Research Council grant has been awarded to Prof. Hans-Wolfgang Micklitz for the project "European Regulatory Private Law: the Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation" (ERPL). The focus of the socio-legal project lies in the search for a normative model which could shape a selfsufficient European private legal order in its interaction with national private law systems. The project aims at a new-orientation of the structures and methods of European private law based on its transformation from autonomy to functionalism in competition and regulation. It suggests the emergence of a self-sufficient European private law, composed of three different layers (1) the sectorial substance of ERPL, (2) the general principlesprovisionally termed competitive contract lawand (3) common principles of civil law. It elaborates on the interaction between ERPL and national private law systems around four normative models: (1) intrusion and substitution, (2) conflict and resistance, (3) hybridisation and (4) convergence. It analyses the new order of values, enshrined in the concept of access justice (Zugangsgerechtigkeit).