Consumer Protection in International Private Relationship

Ksenia M. Belikova, Doctor of Law (Dr. Habil.), Associate Professor, Civil and Labour Law Department, Peoples’ Friendship University of Russia, Moscow, Russia

The article touches upon certain aspects of consumer protection in international private relationships. Special attention is paid to the international dimension of consumer protection and supranational level of consumer protection with regard to EU and MERCOSUR approaches. General principles of consumer protection are being analyzed, conclusions on the application of international and supranational documents are made.

Key words: consumer protection, international private relationships, IPrL, European Union (EU), Southern Common Market (MERCOSUR), International Conventions, European IPrL Conventions, MERCOSUR IPrL Conventions.

Some time ago consumer protection was a matter of national law as the activities of most people were limited to the territory of their own country, and a typical national relationship with no international element took place. Today’s regional and national reality is quite different.

The development of such phenomena as the internationalization of markets, opening of markets to foreign products and services, with increasing economic integration, mass tourism, regionalization of trade, transportation facilities and electronic commerce, growing telecommunications, computer network connections, etc., have pointed to the importance of the international aspects of consumer protection, and there is no way to deny that consumption already crosses borders. One need no longer go anywhere to be a consumer who contracts internationally or deals with suppliers in other countries. Thus, the pressure that has been placed on conflict of laws and conflict of jurisdiction rules has demonstrated the need for imposition of international standards.

The point is that at present many countries provide for consumer protection by constitution or statute, but there is room for regulation at the international and supranational levels. Examples of the types of uniform laws needed are found in EU harmonization initiatives (such as Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) etc.) and the OAS framework of its Specialized Inter-American Conference on Private International Law (further on - CIDIP). In this regard, we should bear in mind the idea of transfer of law-making powers from the State to  international or supranational organizations and groups[1].

As a matter of fact, international consumer protection can only be strengthened if consumers have effective access to justice. Special courts or procedures for consumer litigation or special types of actions, such as class actions, could help to secure access to justice. Dispute resolution mechanisms, whether by traditional arbitration or other flexible modes of settlement though mediation, conciliation, or online arbitration, are also important[2]. In this regard, we should bear in mind the idea of transfer of a large part of dispute settlement from the public sector to the private sector[3].

At present, a number of states dispose of an advanced system of legal provisions aimed at the protection of consumers` rights (e.g., European countries – Spain, etc., Latin American countries - Brazil, Argentine, etc.[4]), whereas some states lack specific rules to cover these transactions (e.g. ), while international consumer law is being rapidly transformed[5].

The international dimension of consumer protection is worth mentioning when:

•   co-contracting parties (one of them being a consumer) can be exposed to the rigors of market rules  in  different countries;
•   consumers buy at a distance, particularly with the  increasing levels of electronic commerce, or
•   consumers are tourists and/ they and/or their transactions are subject to foreign laws or jurisdictions.

The general idea here is that a consumer should not be disadvantaged in terms of safety, quality, guarantees, or access to justice merely because he or she buys products or uses services from another country or thoseprovided by a company headquartered abroad. So protection of a weaker economic agent, i.e.a consumer, who is generally a non-professional individual who acts, contracts, or trades on the consumer market for the provision of goods and services on a non-profit basis and outside his/her primary professional activity, is today of a great interest to both international and regional private international law.The main concern is that both international and regional commerce also involve the language barrier, the barrier of lack of information, different standards and customs, difficulties and insecurity in delivering payment, and difficulties relating to guarantees, the level of quality and post-sale service[6]. Let us have a closer look at the subject.

 

1. International dimension of consumer protection

The United Nations Guidelines for Consumer Protection of 9^th of April, 1985 (as expanded in 1999)[7] stand as following (Art. 2, 3): “Governments should develop or maintain a strong consumer protection policy, taking into account the guidelines set out below and relevant international agreements. The legitimate needs which the guidelines are intended to meet are the following:

(a) The protection of consumers from hazards to their health and safety;

(b) The promotion and protection of the economic interests of consumers;

(c) Access of consumers to adequate information to enable them to make informed choicesaccording to individual wishes and needs;

(d) Consumer education, including education on the environmental, social and economic impacts of consumer choice;

(e) Availability of effective consumer redress;

(f) Freedom to form consumer and other relevant groups or organizations and the opportunity of such organizations to present their views in decision-making processes affecting them;

(g) The promotion of sustainable consumption patterns.”

Some general principles with regard to consumers can be found in many other documents, for instance, in the Resolution No. 4/2012 of the Committee on the International Protection of Consumers:

1. Consumers are the weaker party in situations of mass or standard form contracts, in particular, concerning information and bargaining power;

2. It is desirable to develop standards and to apply rules of private international law that entitle consumers to take advantage of the most favourable consumer protection;

3. Regulation of consumer contracts should be effective and fair and ensure transparency;

4. Responsible lending is incumbent on all those involved in consumer credit transactions, including credit providers, brokers and advisers;

5. Consumer groups should participate actively in the development and regulation of consumer protection[8].

There are a lot of provisions on international sale of goods, including consumer protection,that have “international”origin, e.g. 2007 Lugano Convention (see below)[9]. When consumer transactions fall outside the scope of the special provisions of international conventions with regard to consumers, the general provisions on international contracts apply.

But we should be aware of the fact that these conventions, as a rule, exclude consumers from the scope of their application. Thus, for instance, 1980 Vienne Convention on Contracts for the International Sale of Goods[10], which is not affected by the characterization of the parties as merchants or non-merchants, and the civil or commercial character of the parties or of the contracts is of no  significance (Art. 1(3) of CISG), excludes from the scope of the CISG sales of goods that are clearly destined for the personal or private use of the parties, which must be clear to the seller at the time the contract is concluded (Article 2(a) CISG). This provision can lead to conflicts with domestic mandatory law on  consumer  protection[11].

Likewise, the 1986 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods[12] aimed at replacing the 1955 Hague Convention and supplementing the  Vienna Convention on the International Sale of Goods 1980  took general approaches of both Conventions as to the  scope of application and possibilities of application of other conventions, regulating similar matters. It determines the law applicable to international sale of goods:

a) between parties having their places of business in different States;

b) in all other cases involving a choice between the laws of different States, unless such a choice arises solely from a stipulation by the parties as to the applicable law, even if accompanied by a choice of court or arbitration (Art. 1).

As it goes from Art. 2(c) of the Convention “The Convention does not apply to… sales of goods bought for personal, family or household use; it does, however, apply if the seller at the time of the conclusion of the contract neither knew nor ought to have known that the goods were bought for any such use.”[13]

Economic integration greatly influences national legal systems. This influence is proved in Europe by the existence of the 1980 Rome Convention and supranational legal framework of the European Union (EU, see below) and marked by the communitarization of the law and its collateral effects, - for instance, EU`s membership of the Hague Conference on Private International Law.[14]

As to Latin America, there are nospecific rules of private international law relation to consumer protection in the Latin American countries. For instance, in much the same way asthe 1980 Vienna Convention and the 1986 Hague Convention in MERCOSUR, Buenos Aires protocol on international jurisdiction in contractual matters[15] provides that “This Protocol shall be applied to the international adjudicatory jurisdiction relating to international contracts of a civil or commercial nature entered into between private entitles - natural or juridical persons: 

a) with domicile or corporate headquarters in different State Parties to the Treaty of Asuncion;

b) when at least one of the parties to the contract has its domicile or corporate headquarters in a State Party of the Treaty of Asuncion, and an agreement also has been made on selection of venue in favor of a judge of a State Party, and there is a reasonable connection, according to the rules of jurisdiction of this Protocol.

And the scope of application of this Protocol excludes…contracts for sale to the consumer…” (Art. 1, 2).

The Inter-American Conference on Private International Law is, however, working on this subject, and several drafts are under negotiation.

Likewise, the Hague Conference at a universal level (the 1980 Draft Hague Convention) and MERCOSUR at a regional level (1996MERCOSURSanta María Protocol[16]) are dealing with this matter. Let us get more familiarized with the subject.

 

2 Supranational level of consumer protection: the case of EU and MERCOSUR

2.1 EU approaches

In Europe, since the 1970s, legal theorists have been upholding the need for International Private Law (further on – IprL). Thus, K.Zweigert suggested that IPrL should include social values; P.H.Neuhaussuggested abandoning the concept of contractual autonomy in contracts between weak and strong parties, such as consumer contracts; O.Lando pragmatically suggested that IPrL should choose as the connection the domicile of the weaker party to the contract[17]. The third approach is developed by the provision of the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Art. 15-17) that is applied to consumer contracts and governs issues of jurisdiction between the European Union member states and the European Free Trade Association countries other than Liechtenstein (namely Iceland, Switzerland and Norway). There is a new version of the Lugano Convention dated September 10, 2007[18] that entered into force on January 1, 2010.

The scope of application of the rules of the 2007 Lugano Convention is the following:

(i) The case must be considered to be of a “civil or commercial matter” (Art 1);

(ii) The case must have connection to parties that come from a state which is a member of the Lugano Convention. This means in practice that at least one of the parties must come from Iceland, Lichtenstein, Norway or from a European Union Member state. Provision of Art 1(3) gives the definition of the term “State bound by this Convention” meaning “any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community”[19];

(iii) One of the parties must be a “consumer”. Due to  Art. 15 of the Lugano Convention, a contract is a consumer contract if it is “for a purpose which can be regarded as being outside his trade or profession”[20]. In general, the term “consumer contract” is defined as a contract concluded by a person for a purpose that is regarded to be outside his trade or profession;

(iv) There is no definition of “international consumer transaction” or similar expression in the Lugano Convention.

For those cases that are governed by the Lugano Convention, the main rule, as stated in Art. 16, is that a consumer may sue his / her counterparty either in the state where the counterparty is domiciled, or in the state where the consumer is domiciled. A case against the consumer may only be filed in the state in which the consumer is domiciled. Thus, the provisions under study also protect the consumer by ensuring that the consumer does not have to accept to go to court in a state where the consumer is not domiciled if the other party files a proceeding against the consumer.

A forum selection clause that deviates from the main rule in Art 16 is only valid if it (i) has been entered into after the dispute has arisen, (ii) if it allows the consumer to bring proceedings in courts other than those indicated in Art. 15-17, or (iii) the agreement is entered into when both parties at the time of conclusion of the contract are domiciled or habitually resident in the same state. As for online consumer transactions, the provisions on protection of the consumers in connection to forum selection clauses do not expressly have any references to online consumer transactions; likewise, no other above mentioned provisions have any particular reference to online consumer transactions[21].

For consumer transactions that fall outside the scope of the provisions of the 2007 Lugano Convention, the general provisions on international contracts apply. There are, however, protection rules in insurance cases and in disputes over individual employment contracts, according to the Lugano Convention (Art 8-14). In this regard, the question of the choice of an applicable law becomes of a practical interest.

Under Council Regulation 593/2008 on the law applicable to contractual obligations (Rome I)[22], consumers in Europe are permitted to select the applicable law of a contract, to the extent that the protections under the selected law do not derogate from the protections of the laws of their home jurisdiction[23].

Generally, European courts will not enforce a law selection clause if doing so would ignore the binding laws of the consumer’s native jurisdiction. Though premised on the concept of choice, the European choice-of-law rules, at their core, have aimed to protect the weaker party in consumer transactions[24]. In 1979, the European Courtof Justice in Rewe-Zentral AG v. Bundesmonopolverwaltung fürBranntwein (Cassis de Dijon) overturned a German regulationprohibiting the sale of drinks of a certain alcoholic content, implicitlydeciding that member states should mutually recognize the laws of other states[25].

This decision was later extended from productionstandards to services and represents an obligation on states torecognize foreign law, especially when that law concerns the countryof origin of one of the parties.This development of the concept of free movement influenced the European approach to permitting consumer choice. While consumer choice became the “guiding principle” of European consumer law, particular rules for some contracts were developed in which a certain  level of additional protection for one party to the contract was generally accepted to be required. The European development of specific contract laws in the consumer protection context is one such area.

The development of the rules regarding contractual obligations in Europe and of the special approach taken to consumer protection can be seen through the analysis of the provisions of the 1980 Rome Convention on the law applicable to contractual obligations[26]. Thus, the ability of parties to stipulate to a choice of law was one of the basic rules of the Rome Convention, which explicitly states that “[a] contract shall be governed by the law chosen by the parties.” (Art. 3). Yet, the extent of such choice was limited in some contexts, including those relating to consumer transactions and employment contracts (Art. 5, 6).

Specifically, Art. 5 provides that a choice of law made by the parties shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence:

- if in that country the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract, or

- if the other party or his agent received the consumer's order in that country, or

- if the contract is for the sale of goods and the consumer travelled from that country to another country and there gave his order, provided that the consumer's journey was arranged by the seller for the purpose of inducing the consumer to buy.

Thus, the German Federal Court invalidated a credit contract between an Austrian bank and a German customer that was to be governed by Austrian law[27]. The German Federal Court held that German provisions against doorstop-selling remained applicable for the German consumer under the rules of the predecessor to Article 5(2) in Rome I[28]. Since German laws provided this protection for habitual residents of that country, the court interpreted those protections as ones that could not be abrogated by a choice of another state’s law.

At the same time, the provisions of Art. 4 are applied to a contract the object of which is the supply of goods or services to a person ('the consumer`) for a purpose which can be regarded as being outside his trade or profession, or a contract for the provision of credit for that object (Art. 5).

As the Rome Convention gave way to the Rome I regulation (see above), the various drafts of rules applicable to consumer contracts evinced these concerns about balancing consumer choice with the protection of the weaker party.In the final amendments to Article 5, the European Parliament proposed that 5(1) of the Rome I regulation still required that a commercial contract be “governed by the law of the country where the consumer has his or her habitual residence.” But Article 5(2) was changed to allow parties to choose the law applicable to the contract, so long as that choice would not “have the result of depriving the consumer of the protection afforded to him by such provisions that cannot be derogated from by contract by virtue of the law which, in the absence of choice, would have been applicable on the basis of [Article 5(1)]”[29].

Under the Rome I regulation, consumers are protected by the application of the laws of their habitual residence so long as the other party - the “professional” acting in furtherance of a professional trade- pursued these commercial activities in that consumer’s home country (Art. 6(1)(a)-(b)). If a company advertises or holds itself out for business in a jurisdiction, a consumer who resides in that state is entitled to the protection of those laws. Therefore, Europe has chosen to provide a basic guarantee to consumers who enter into contracts with professional sellers. These requirements show that home law protection is not boundless but is instead based on the expectation of reasonable corporate and consumer actions. Consumers that contract within their home jurisdictions are entitled to the protection of those laws. Similarly, sellers are responsible for complying with the laws of those states where they advertise or conduct business. Any consumer contract, therefore, cannot abrogate those protections under Europe’s choice-of-law analysis. Thus, Rome I has allowed for a more consistent choice-of-law system for consumer protection in Europe.

The European consumer rules also act in conjunction with a variety of Directives,[30] including those Directives that affect the Community’s choice-of-law approach.

One such Directive governing distance contracts[31] notes the wide variance in protections afforded by different jurisdictions and articulates a need for a minimum level of common rules that would protect consumers.

The Unfair Contract Terms Directive[32] states that a contract term that is not individually negotiated is unfair if it runs contrary to the requirement of good faith and “causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer.”

These directives are based on the idea that the confidence of consumers will be strengthened when they expect equal rights and remedies regardless of where the transaction took place.Thus, the European approach of providing for basic and predictable rules on which consumers can rely not only protects consumers in theconduct of modern transactions, but also benefits the market by ensuring greater consumer confidence[33].

At the same time, European Commission hasalways been in favour of the out-of-court settlement of consumer disputes. To this end, it has simplified the procedure through the creation of a European complaints form for consumers^[34] and by publishing various recommendations. Thus, Communication from the Commission of 30 March 1998 on the out-of-court settlement of consumer disputes[35] and Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputescan be named.

The Communication from the Commission reiterates the problems of access to justice for individual consumers who encounter material obstacles, such as:

• the high cost of legal consultation and representation;
• long delays before a case is judged.

Consumers are also faced with psychological barriers  due to the formalism and complexity of court procedures, particularly in the case of cross-border disputes.

As a result, in most consumer disputes the inordinate length and excessive cost of the legal procedure are out of proportion to the limited value of the case. Many consumers, therefore, do not even try to assert their rights.

To handle these challenges, the Communication refers to three further approaches available.

The first of these is the simplification and improvement of legal procedures, so that the case can be dealt with in a simplified manner, making the involvement of a lawyer optional and encouraging conciliation before a judge. However, the Communication does not cover these legal procedures and thus does not contain proposals concerning this fundamental area.

Next, it is necessary to work on improving communication between consumers and professionals in order to help consumers find an amicable solution to their disputes with professionals. To do this, several obstacles must be overcome, including the lack of consumer information, the problems consumers have in formulating their complaints clearly, and language problems in the case of cross-border disputes.

The third way to overcome the difficulties involved in settling consumer disputes is to introduce out-of-court procedures, such as mediation, conciliation or arbitration. The Commission Recommendation aims to establish a series of principles applicable to out-of-court procedures in order to provide certain guarantees, such as transparency, independence and legality.

Principles to be respected by the dispute-resolution bodies:

1) When a decision is taken on an individual basis, the principle of independence is guaranteed as follows:

the person appointed:

•possesses the abilities and competence required to perform the function;

•is granted a period of office of sufficient duration to ensure the independence of his/her action and cannot be relieved of his/her duties without just cause;

•has not, during the three years prior to assuming his/her present function, worked for the professional association or enterprise which is remunerating him/her or which has nominated him/her for this function.

2) The principle of transparency is ensured by various methods, including:

• provision of the following information to any persons requesting it:

- a description of the types of dispute which may be referred to the body concerned,
         - the rules governing the referral of matters to the body,

- the possible cost of the procedure for the parties,

- the rules serving as a basis for the body's decisions (codes of conduct, legal provisions, etc.),

- decision-making arrangements,

- the legal force of decisions.

• publication of an annual report on the decisions taken.

3) The principle of effectiveness implies:

• that the consumer has access to the procedure without being obliged to use a legal representative;
• that the procedure costs little or nothing;
• that the period between referral and decision will be short;
• that the competent body is given an active role, etc.

On 29 November2011,the European Commission proposed two projects -Proposal for a Directive of the European Parliament and of  the Council on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR)[36] and Proposal for a Regulation of the European Parliament and of the Council on online dispute resolution for consumer disputes (Regulation on consumer ODR)[37] aimed at the facilitation of protection of consumer rights.

On 18 June 2013, the new legislation on Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) -  Directive on consumer ADR and Regulation on consumer ODR - was published[38].

The new legislation on ADR and ODR will allow consumers and traders to solve their disputes without going to court, in a quick, low-cost and simple way.

The ADR Directive will ensure that consumers can turn to quality alternative dispute resolution entities for all kinds of contractual disputes that they have with traders; no matter what they purchased (excluding disputes regarding health and higher education)and whether they purchased it online or offline, domestically or across borders.

According to the ODR Regulation, an EU-wide online platform will be set up for disputes that arise from online transactions. The platform will link all the national alternative dispute resolution entities and will operate in all official EU languages.

Member States will implement the ADR/ODR rules by July 2015. The ODR platform will be operational in January 2016.

 

2.2 MERCOSUR approaches

As for MERCOSUR, the sub-regional system works;in the field of IPrL,  MERCOSUR has already achieved some results.  Indeed, since Art. 1 of AsunciónTreaty (the MERCOSUR legal founding text) obliged the Member States “to harmonize their law in the appropriate areas to reach the strengthening of the integration process”[39]. MERCOSUR authorities have decided that one of these areas is IPrL[40].

Thus, at the very beginning of the integration process, they adopted the Las Leñas Protocol on Cooperation and Jurisdictional Assistance in Civil, Commercial, Labour and Administrative Matters creating legal frameworkto dispute resolution in MERCOSURof 1992[41], in order to regulate the international legal cooperation between the Contracting States.

In 1994, MERCOSUR adopted two new IPrL Conventions - the aforementioned Buenos Aires Protocol on International Jurisdiction in Contractual Matters and the Protocol on Preventive Measures[42].

Two new conventions were agreed in 1996: The San Luis Protocol on Civil Liability in Traffic Accidents[43], including jurisdiction and choice of law rules, and the aforementioned Santa María Protocol on International Jurisdiction in Consumer Relationships.Some provisions of these Protocols were used by the Permanent Mission of the Eastern Republic of Uruguay to the Organization of American States in connection with the preparations for the Seventh Inter-American Specialized Conference on Private International Law (CIDIP-VII) held in 2005. For instance, with regard to applicable law from Santa María Protocol, the following provisions were adopted:

“1. The judges or courts of the State in whose territory the consumer is domiciled shall have jurisdiction to hear claims filed by the consumer that deal with consumer relationships.

2. The supplier of goods or services may sue the consumer before the judge or court of the consumer’s domicile.

3. As an exception and at the exclusive wish of the consumer as expressly indicated at the time the claim is filed, the State that has jurisdiction may also be that

a. in which the contract was signed;

b. in which the services are provided or the goods are delivered;

c. in which the respondent is domiciled”[44].

In 1997,MERCOSUR elaborated two “complementary agreements”, respectively to the Las Leñas Protocol and to the Protocol on Preventive Measures, containing the formal requirement for the application of these Protocols.

In 1998, two identical Arbitration Agreements were concluded: one between the MERCOSUR Slates, and  the other between MERCOSUR, Bolivia and Chile.

In 2000, two identical Agreements on the Free Access to Justice and Judicial Assistance were also adopted.

Finally, in 2002,on the one hand, the Las Lenas Protocol was modified and another “mirror” Protocolwas agreed to extend the Las Lenas system to Bolivia and Chile; on the other hand, two identical Agreements (one between the Member States, and the other - between them and Bolivia and Chile) on Jurisdiction over International Cargo Transport Contracts were reached[45].

After such  work, representatives of MERCOSUR made a pause in their legislative ideas, taking into account the technical flaws of conventions and the problems in the ratification process. Anyway, on the one hand, upon the entry into force of the Asunción Treaty in 1991, the codifying process of the MERCOSUR IPrL began to create real, though fragmented, MERCO-UPrL. On the other hand, since some of the rules of the MERCOSUR IPrL were made according to the solutions of the CIDIP, some MERCOSUR countries, for example Brazil, directly joined fourteen Inter-American Conventions, having ratified them between 1994-1998 and getting involved not only with its integration partners, but also with other OAS states as well. That is why insufficient consumer protection in the provisions of IPrL is looked at by sud-americanos (e.g. Prof. Claudia Lima Marques of Federal University of Rio Grande do Sul et. al) from the point of view of the need for new Inter-American convention (CIDIP) on the Law Applicable to Certain Contracts and Consumer Relations[46].

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