The new regulatory framework for consumer dispute resolution

513 Pages·2017·5.487 MB·English

by  Cortes, Pablo

i
THE NEW REGULATORY FRAMEWORK
FOR CONSUMER DISPUTE RESOLUTION
ii iii
iii
The New Regulatory
Framework for Consumer
Dispute Resolution
Edited by
PABLO CORTÉS
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1
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A mi madre
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Acknowledgements
This book is the outcome of a conference held on the 10 and 11 of September 2015
at the University of Leicester— back when the odds of Leicester wining the premier
league were 5,000 to 1, and the possibility of Brexit appeared to be rather unlikely. Yet,
in 2016 Leicester won the premier league and the United Kingdom voted in a refer-
endum to leave the European Union, which threw a spanner in the works of the UK
and the EU. The positive element of all of this is that it forces all of us, and especially
our politicians, to think hard about how we can best move forward. Although at the
time of writing this note the consequences of Brexit remain completely unknown, a
soft version—that is one where the UK remains within the European Economic Area
like Norway—would require the UK to continue complying with the Internal Market
rules, including those related to consumer dispute resolution. A hard Brexit however
would be a massive leap into the unknown, for which I would not feel very optimistic.
But either way I would not anticipate sudden changes in the field of consumer redress.
I would like to thank a number of people who have made this publication possi-
ble. First and foremost, I must thank all the contributors to this book and the fund-
ing provided by the Nuffield Foundation as part of its Law in Society programme.*
Participants at the conference examined how the new European rules on consumer
ADR have been transposed by national legislators and the impact that the new law
is having in increasing consumer access to redress. The purpose of the conference
was to identify best practices in national models so that they can inform the evolv-
ing design of the national consumer redress landscapes. I am thus grateful to all the
participants, who included members of dispute resolution bodies, a representative of
the European Commission, and academics from ten different jurisdictions, including
Professor Amy Schmitz from the Missouri University. I am also grateful to the key-
note speakers (Christoph Decker, Mike Lind, and Professor Christopher Hodges) as
well as the chairs (Diana Wallis, Matthew Vickers, Graham Ross, Professors Esther
Vilalta and Cosmo Graham) who took time from their busy schedules to participate
in the conference.
I would also like to thank my family, especially my wife and kids for their uncondi-
tional love and their constant and unwavering support. Finally, I would like to dedi-
cate this book to my mother, who when I was a child patiently sat next to me in the
kitchen late at night to help me complete my homework— that example of dedication
has stood me well in my academic career.
Pablo Cortés
Leicester, 2 August 2016
* The Nuffield Foundation is an endowed charitable trust that aims to improve social well- being in
the widest sense. It funds research and innovation in education and social policy and also works to build
capacity in education, science and social science research. The Nuffield Foundation has funded this pro-
ject, but the views expressed are those of the authors and not necessarily those of the Foundation. More
information is available at www.nuffieldfoundation.org.
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Contents
Table of Cases xix
Table of Legislation xxiii
List of Contributors xxvii
Introduction 1
Pablo Cortés
I. THE EUROPEAN FRAMEWORK FOR CONSUMER
DISPUTE RESOLUTION
1. The New Landscape of Consumer Redress: The European Directive on
Consumer Alternative Dispute Resolution and the Regulation on Online
Dispute Resolution 17
Pablo Cortés
2. Developments in European Civil Procedures 41
Pablo Cortés and Rafał Mańko
3. The Consumer Arbitration Conundrum: A Matter of Statutory
Interpretation or Time for Reform? 65
Pablo Cortés
4. Access to Court? ‘Encouraging’ Consumers to Use Court- Connected
Mediation in Small Claims and Other Cases 79
Sue Prince
5. Ombudsman Schemes— Energy Sector in Germany, France, and the UK 101
Naomi Creutzfeldt
II. CONSUMER DISPUTE RESOLUTION IN
SELECTED MEMBER STATES
6. The Implementation of the Consumer ADR Directive in Belgium 125
Stefaan Voet
7. The Implementation of the Consumer ADR Directive in France 149
Emmanuel Guinchard
8. The Implementation of the Consumer ADR Directive in Germany 169
Rosa Miquel
9. The Implementation of the Consumer ADR Directive and the ODR
Regulation in Ireland 191
G. Brian Hutchinson
10. The Implementation of the Consumer ADR Directive in Italy 209
Carlo Pilia, Pablo Cortés, and Paolo Vargiu
11. The Implementation of the Consumer ADR Directive in the Netherlands 229
Eline Verhage
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viii Contents
12. The Implementation of the Consumer ADR Directive in
Portugal: Necessary Reform or Missed Opportunity? 251
Cátia Marques Cebola
13. Challenges for the Implementation of the Consumer ADR
Directive in Spain 275
Fernando Esteban De La Rosa
14. Regulating ADR: Lessons from the UK 297
Richard Kirkham
15. Consumer Redress in the United States 325
Amy J. Schmitz
III. NEW TRENDS IN CONSUMER DISPUTE RESOLUTION
16. Consumer Redress: Implementing the Vision 351
Christopher Hodges
17. A Dispute System Design Perspective on the Future Development
of Consumer Dispute Resolution 371
Jane Williams and Chris Gill
18. Cross- border Consumer Redress after the ADR Directive
and the ODR Regulation 393
Guillermo Palao Moreno
19. New Trends for ADR in the European Union 407
Giuseppe De Palo and Romina Canessa
20. Consumer ADR and Collective Redress 427
Cosmo Graham
Conclusion: Ensuring the Provision of Consumer Dispute Resolution 447
Pablo Cortés
Index 469
ix
Detailed Contents
Table of Cases xix
Table of Legislation xxiii
List of Contributors xxvii
Introduction 1
Pablo Cortés
A. The emergence of consumer dispute resolution 1
1. From courts to consumer alternative dispute resolution 1
2. The variety of consumer dispute resolution models 3
3. The new European regulatory framework for consumer dispute resolution 4
B. The contribution of this book to the existing academic debate 6
C. Structure of this book 8
1. Part I—The European framework for consumer dispute resolution 9
2. Part II—Consumer dispute resolution in selected Member States 10
3. Part III—New trends in consumer dispute resolution 12
Bibliography 13
I. THE EUROPEAN FRAMEWORK FOR CONSUMER DISPUTE
RESOLUTION
1. The New Landscape of Consumer Redress: The European Directive on
Consumer Alternative Dispute Resolution and the Regulation on Online
Dispute Resolution 17
Pablo Cortés
A. Introduction 17
B. Directive 2013/ 11/ EU on alternative dispute resolution for consumer
disputes 20
1. Scope of application 20
2. Quality criteria and due process standards for certified CADR entities 22
3. Information requirements 27
4. Competent authorities 28
C. Regulation (EC) 524/ 2013 on online dispute resolution 29
1. Scope of application 30
2. The ODR platform 30
3. Language, assistance, and translation 32
4. Critical remarks 33
D. Changes and challenges in the CADR landscape 34
1. The functions of CADR and its voluntary nature 34
2. The risk of forum shopping 36
3. The way forward 37
Bibliography 38
2. Developments in European Civil Procedures 41
Pablo Cortés and Rafał Mańko
A. Introduction 41