Setting Boundaries Rather than Imposing Bans: Is it Possible to Regulate Consumer Arbitration Clauses to Achieve Fairness for Consumers?

The benefits of arbitration as a form of alternative dispute resolution in business to business disputes, particularly international business to business disputes, are well recognized and will be discussed in this article. Concerns arise, however, where arbitration is sought to be imposed as a method of dispute resolution upon consumers, through the inclusion of arbitration clauses in consumer contracts. Whilst there is a body of literature which argues strongly against the enforceability of arbitration clauses in consumer contracts, there is little consideration in the literature as to the possible benefits of consumer arbitration which might warrant enforceability within particular regulatory boundaries. To date, the pro-arbitration stance taken by some commentators and courts is premised on freedom of contract arguments rather than consumer benefit. This article will explore whether it is possible to overcome a number of the current concerns regarding the use and enforcement of consumer arbitration clauses through constructing a regulatory framework which will give rise to a fair alternative dispute resolution mechanism for consumers. The article will begin by exploring the current context which includes limitations upon the arbitrability of consumer disputes in a number of jurisdictions. It will then go on to consider what might be the benefits of facilitating consumer arbitration as a mechanism for alternative dispute resolution, particularly in the context of international consumer disputes. The article will then outline a range of concerns regarding the perceived unfairness of consumer arbitration and will draw upon current and potential regulatory models to consider ways of addressing those concerns. The article will conclude with recommendations for a regulatory model designed to facilitate fair consumer arbitration.     

Group Action in the Baltic States

The article is based on a study which aimed at examining the existence and use of group actions in consumer issues in the Baltic states. It was part of a larger research project in which the same questions were studied in all Central and Eastern European countries. Besides group actions in courts, administrative group actions were also studied.A starting point for the study was an overview of substantive consumer protection legislation in the Baltic states. In spite of the fact that there has been a rapid development in this field during recent years, the main finding was that many substantive law elements of consumers' collective interests, which in the EU Member States are often protected by different kinds of group actions, are as yet not regulated at all in the Baltic states or not regulated in a sufficiently detailed way in the Baltic states.The study showed that several kinds of group action exist in these countries. Firstly, there are administrative group actions for injunction. They are applied mainly in cases concerning product information, product safety, and unfair competition. Secondly, a group action by a consumer organisation for injunction in a court is, in principle, possible in Estonia and Lithuania, but not in Latvia. So far, no case law exists, however. A genuine group action for compensation is not possible in the Baltic countries, but a consumer organization may represent an individual consumer or a specified group of consumers in a court and may claim compensation on their behalf. The study showed that administrative group actions are a functioning part of the present consumer protection system in these countries, whereas court actions so far exist only on paper. It also showed that in the Baltic states, procedural means are in some matters better developed than substantive consumer law, whereas in many western countries, the exact opposite is the case. The article concludes with some recommendations as to how the Baltic states could develop their consumer protection legislation.     

电子商务ODR争议解决机制研究

现阶段,对于有效解决电子商务纠纷问题,我国传统的争议解决模式已不适用,主要是在法律准备、裁判执行力、行政手段参与及纠纷解决成本方面都存在困境。ODR作为ADR在网络空间的拓展和延伸,可有效弥补传统争议解决机制的不足。需要高度关注的问题是ODR作为一把双刃剑,在具备了比传统争议解决方式更多优点的同时,也暴露出了解决机制缺乏有效性、解决结果执行缺乏保障性、保密和信任机制不完善等诸多问题。我国应以立法方式确定ODR裁决的效力;进一步加快网络信息平台建设,切实加强区域间及国际间合作,从而有效推进我国ODR模式的快速发展,更好的维护网络消费者合法权益。     

Reducing Demand for Litigation in Consumer Disputes—a Randomized Field Experiment with Social Information

It has long been argued that alternative dispute resolution is superior to traditional court litigation. The paper reviews traditional and behavioural arguments and findings for why litigation rates remain high. The paper then reports on a natural field experiment designed to test how to improve disputes between consumers and businesses in Denmark resolution by including social information into the dispute process. The experiment demonstrates that social information significantly affects litigants’ need for litigation, but that the effect on settlement rates is non-significant. The results are discussed along with suggestions for possible future research into improving the willingness to cooperate in consumer disputes.     

Between Neo-Liberalism and the Social Market: Approaches to Debt Adjustment and Consumer Insolvency in the EU

Many EU countries introduced debt adjustment systems as a response to the growth of over-indebtedness since the 1980s. These systems, originally introduced in many countries as crisis measures, have now become normalized, metamorphosing through a continuing learning process into a combination of debt adjustment and insolvency relief through a discharge of debt, sometimes after only 1?year, but often after a debt repayment plan over a period of 3–7?years. Since the early 2000s, new Member States of the EU have also introduced insolvency systems, often based on models from the old states. This paper examines experience in European consumer insolvency systems, based on the modest empirical studies of existing systems, primarily England, France and Germany. It discusses the reasons for the use of consumer insolvency, and the limited data on the characteristics of users, charts distinct national approaches and outlines common themes and objectives for consumer insolvency in the context of EU measures to create an integrated credit market in a “competitive social market. To economy”. It concludes by underlining the absence of systematic social science knowledge on existing systems and outlines areas for further research.     

Collective Redress: A Breakthrough or a Damp Sqibb?

In June 2013, the European Commission issued its long-awaited policy on collective redress. The proposal is in fact about collective actions and omits a holistic assessment of other options for redress. The proposal is a Recommendation not a proposed legislation. A related proposed Directive on competition damages does not mention collective actions. The proposed framework is not a model as too many aspects remain subject to national rules and contexts. Empirical evidence from collective actions in Member States suggests that this does not herald a new dawn for litigation or redress, although it may fuel more litigation in some Member States and thus forum shopping. In threatening to introduce legislation unless Member States introduce collective actions for all types of claim, the Commission opposes the majority of the Council and seems to have overplayed its hand.     

Consumer vulnerability and complaint handling: Challenges,opportunities and dispute system design

Effectively designed complaint handling systems play a key role in enabling vulnerable consumers to complain and obtain redress. This article examines current research into consumer vulnerability, highlighting its multidimensional and expansive nature. Contemporary understandings of consumer vulnerability recognize that the interaction between a wide range of market and consumer characteristics can combine to place any individual at risk of vulnerability. While this broad definition of consumer vulnerability reflects the complex reality of consumers’ experiences, it poses a key challenge for designers of complaint handling systems: how can they identify and respond to an issue which can potentially affect everyone? Drawing on current research and practice in the United Kingdom and Australia, the article analyses the impact of consumer vulnerability on third party dispute resolution schemes and considers the role these complaint handling organizations can play in supporting their complainants. Third party complaint handling organizations, including a range of Alternative Dispute Resolution services such as ombudsman organizations, can play a key role in increasing access to justice for vulnerable consumer groups and provide specific assistance for individual complainants during the process. It is an opportune time to review whether the needs of consumers at risk of vulnerability are being met within complaint processes and the extent to which third party complaint handlers support those who are most vulnerable to seek redress. Empowering vulnerable consumers to complain presents specific challenges. The article discusses the application of a new model of consumer dispute system design to show how complaint handling organizations can meet the needs of the most vulnerable consumers throughout the process.     

中美欧贸易报复制度的比较研究

WTO体制下,贸易报复是争端解决的最后保障,但WTO争端机制旨在解决成员之间的争端,因此,要赋予私人请求本国政府对另一国家进行贸易报复的权利,仍然需要国内立法.目前,各主要大国都通过国内立法赋予本国国民权利,以请求本国政府对另一国家进行贸易报复,为争端解决的国内程序和国际程序的衔接提供了基础,使得本国国民可以通过国内程序启动WTO的争端解决程序.与美欧相比,我国关于贸易报复的立法和实践经验均不甚丰富,确实需要借鉴较为完备的美欧立法,完善我国的有关法律制度.     

Lemon laws in the United States: More hype than help?

Lemon laws are a recent phenomenon in the United States. Over thirty states have passed such laws since 1982 to give purchasers a refund/replacement remedy for a defective new motor vehicle. Prior to the passage of lemon laws, existing law provided little hope of consumer redress in this situation. This article reviews the various characteristics found in United States lemon laws and offers criticism in the areas of third-party dispute resolution mechanisms, objective quantification of what constitutes a lemon, and the refund/replacement remedy.     

Mind the gap: Tech-based dispute resolutions in global supply blockchains

Blockchain, a type of distributed ledger technology (DLT), can be used for supply chain and is commonly discussed among distribution giants and small players. Blockchain’s actual and perceived benefits, in addition to track-and-trace mandates from regulatory bodies, have driven these discussions. However, there is no mention of how existing dispute resolution processes have been overhauled in favor of blockchain smart contracts, which can be used to manage and resolve disputes. This conversation gap is critical as trust will erode if supply chain partners cannot settle disputes adequately. We highlight the importance of supply chain DLT management and suggest tactics for resolving the inevitable disputes that arise with disparate information. These guidelines, including adopting portable and enforceable contractual terms and a standardized dispute resolution process, can have practical applications beyond blockchain.     

Enforcement Activity in Consumer Protection Regulation in Croatia

The law regulating consumer protection in the Republic of Croatia began its intensive development through the process of harmonization of Croatian legislation with EU law. Apart from the approximation of Croatian legislation with the acquis, in the pre-accession process, Croatia also undertook obligations to introduce and develop corresponding mechanisms for the efficient enforcement of consumer protection in practice. The development of consumer protection policy was recognized as a priority area in Croatia, and even before full membership, the process of implementing new directives in the area of consumer protection ran almost in parallel to and at the same pace as that of the Member States. Alongside the harmonization of its legislation with the EU consumer acquis, Croatia started developing a regulatory enforcement structure, including a whole series of mechanisms to achieve individual and collective protection of consumer rights. Among other things, the satisfactory development of regulatory enforcement activities in consumer protection was one of the preconditions for the successful completion of the accession negotiations and for signing the accession treaty. At the same time, the article suggests that in the area of both the individual and collective realization of consumer protection, there is a need for further progress through, on the one hand, developing administrative capacities and enhancing access to justice, as well as developing a system of out-of-court settlement of consumer disputes on the other.     

论近代藏边民族纠纷解决中的自力救济方式——以拉卜楞寺与周边土司纠纷解决为例

近代藏边民族纠纷解决中的方式很多,与外界参与解决相对应的即是通过纠纷方自身努力而解决的方式,这种方式称之为自力救济方式。拉卜楞寺与周边土司经常产生各种纠纷,如拉卜楞与墨颡土官和卓尼杨土司产生纠纷后,政府或其他民间力量也参与了解决的过程,但主要的方式是通过纠纷主体的自力救济的方式解决的。用自力救济的方式解决社会纠纷表现出宗教性、非暴力性的特点。     

Consumer Insolvency in the European Legal Context

Consumer credit, as an important aspect of the free movement of capital, has for a long time now been subject to European Union regulations. However, one important aspect of consumer credit, over-indebtedness, has not been acknowledged in the Consumer Credit directives of 1978 and 2009, nor is there any other European Union law instrument that addresses over-indebtedness or insolvency of consumers. The only European-level document addressing the problem of over-indebtedness of ordinary people is the Council of Europe Recommendation of 2007. In European Union law, over-indebtedness can and should be approached from several angles. The Insolvency Regulation (2000) does not directly address situations facing the consumer debtor and leaves it up to the discretion of the Member States to include or exclude insolvency proceedings for consumer debtors regarding the scope of the Regulation. There can be little doubt that the European Union has a legal basis for action in this field, and it has also used its competence in a number of related issues, such as general insolvency law and enforcement of judgments. Case C-461/11, in which Advocate General delivered her opinion on Sept 13^th, 2012 shows that national insolvency procedures for natural persons may constitute a restriction on the freedom of movement. This article argues that, even in the absence of a European Union law instrument, the Member States should recognize debt adjustment judgments made in another Member State and that there is a need for a regulation in the European Union law in this field.     

Recurrent trade agreements and the value of external enforcement

This paper presents a theory of dynamic trade agreements in which external institutions, such as the WTO, play a central role in supporting credible enforcement. In our model, countries engage in ongoing negotiations, and, as a consequence, cooperative agreements become unsustainable in the absence of external enforcement institutions. By using mechanisms such as delays in dispute resolution and direct penalties, enforcement institutions can restore incentives for cooperation, despite the lack of coercive power. The occurrence of costly trade disputes, and the feasibility of mechanisms such as escape clauses, depend on the degree to which enforcement institutions can verify, and condition on, events that may lead to trade disputes.     

Developing Countries as Plaintiffs and Defendants in GATT/WTO Trade Disputes

Developing countries have been increasing their participation in the formal institutions and proceedings of the multilateral trading system. A prominent example is their more frequent involvement as defendants and plaintiffs in GATT/WTO trade disputes. This paper provides an initial economic appraisal of developing country performance in the GATT/WTO dispute settlement system. We measure the economic resolution of these disputes through trade liberalisation gains, and our results suggest that developing country plaintiffs have had more success under WTO disputes than was the case under the GATT. We also document evidence on potential determinants of this success: the capacity for plaintiffs to make credible retaliatory threats and the guilty determinations by GATT/WTO panels. Finally, there is also some evidence that developing countries have recognised the importance of retaliatory threats and have responded by changing their pattern of dispute initiation under the WTO to better take advantage of the instances in which they have sufficient leverage to threaten retaliation and induce compliance with GATT/WTO obligations.     

Policies and practice in Denmark and Sweden

Abstract: Danish laws regulating banking and financial services organizations have no consumer protection provisions, although there is one law regulating a particular kind of payment instrument, the Payment Cards Act. However, general consumer protection law applies to banks and other financial services organizations, as well as other kinds of business. In particular, the Marketing Practices and Price Marking and Price Display Acts give responsibilities to the consumer ombudsman. This legal framework is complemented by guidelines issued – after consultation – by the consumer ombudsman, for example on conduct of business in bank advice, mortgage business and distance selling involving payment cards. The Danish system may be summarized as providing for standards of business behaviour laid down in general terms by law, backed by a supervisory authority with little power of coercion but playing an important role in influencing businesses to adopt high consumer protection standards and in negotiating solutions to problems as they emerge. The Swedish system is generally similar, but less advanced in the use of guidelines for the conduct of business. Both countries provide consumers who have unresolved complaints with easy access to alternative dispute resolution systems and the courts are rarely used to establish case law.     

International Consumer Attitudes Toward Cloud Computing: A Social Cognitive Theory and Technology Acceptance Model Perspective

The purpose of this article is to examine the factors affecting consumer attitudes toward cloud computing in the United States and Australia. The technology acceptance model and social cognitive theory are utilized to test relationships between technology acceptance model constructs (perceived ease of use and perceived usefulness) with individual characteristics that are shaped by environmental factors as part of social cognitive theory (consumer innovativeness, security concerns, performance expectations, and social networks) on consumer attitudes toward adopting cloud computing services. Consumers in the youth segment are used to test the hypotheses in two different countries (the United States and Australia). The results of the analysis indicate similarities and differences related to behavioral intentions and adoption behavior toward cloud computing services. © 2015 Wiley Periodicals, Inc.     

Regime Market Performance Analysis: Informing European Consumer Policy

The Single Market of the European Union has progressed during recent decades to encompass more than 500 million consumers in 28 EU Member States and adjoining countries. During the same period, consumer issues have received growing policy interest and policy measures have been put in place to harmonize the Single Market, that is, to make national markets more alike. Yet, in order to provide policy measures that promote desirable market outcomes, the considerable challenge of understanding differences in the market performances of participating countries and the relationships between national markets and the Single Market need to be addressed. Consequently, this article proposes the consideration of differences in terms of regimes, that is, between groups of similar countries, when assessing the performances of markets. Differences in market performances are analysed with the Kruskal–Wallis test using survey data from the European Commission, and results were reviewed against market studies carried out by the Commission. Findings show that regime differences in market performance can indeed be observed and that the regime approach can draw policy attention to commonalities in market arrangements in addition to the consumer issues conventionally examined, such as price differences and consumer awareness.     

粤港澳大湾区知识产权法律冲突及解决路径探析

自《内地与香港、澳门关于建立更紧密经贸关系的安排》(CEPA)实施以来,粤港澳一直将知识产权保护作为三地间实现贸易便利化、自由化过程中的一项重要任务。由于粤港澳三地间法律制度的差异,产生了管辖权、冲突法、实体法以及司法协助等诸多方面的冲突,这些差异直接导致三地间知识产权法律纠纷的发生。在粤港澳大湾区建设中,需要基于粤港澳现有知识产权法律制度,通过完善立法,强化司法和执法保护,纾解粤港澳大湾区现有知识产权法律冲突的困境,创新知识产权纠纷解决机制,以知识产权发展推动科技创新,为推进粤港澳大湾区建设营造良好的法治环境。     

The use of the consumer ethnocentrism and consumer animosity scales in Iran: A research note

This research note presents the results of testing the reliability of two constructs from the country‐of‐origin literature—consumer ethnocentrism and consumer animosity—within the Iranian national consumer environment. Consumer ethnocentrism, developed by Shimp and Sharma (1987), measures the level of consumer ethnocentrism and has been used broadly in several countries. The consumer animosity scale (Klein, Ettenson, & Morris, 1998), a newer construct, has not been widely tested for its reliability in diverse national contexts. The country of Iran, with its ongoing dispute and hostility with the United States, provides an ideal context to test both of these constructs. We utilized the original animosity scale and an adapted version of the ethnocentrism scale. Both scales performed well and provide strong support for the reliability of each construct, allowing other researchers a high degree of confidence in their application. This finding suggests that these research tools may be useful and can be expanded to the greater Middle East region. © 2009 Wiley Periodicals, Inc.