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SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTES

SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTES. Belgrade, 27 th and 28 th June 2013 Sava Centar. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTES Belgrade, 27 th and 28 th June 2013. Avenues and barriers to consumer redress Prof. Thierry Bourgoignie

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SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTES

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  1. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTES Belgrade, 27th and 28th June 2013 Sava Centar

  2. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Avenues and barriers to consumer redress Prof. Thierry Bourgoignie IPA Project team leader and Key legal expert

  3. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Enforcement as a priority • The perception by consumers that the LCP is enforced swiftly acts as a driver for increasing consumer confidence, preventing consumer frustration and as a deterrent to traders seeking to evade consumer protection rules.

  4. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Barriers to access-to-justice • Awarenessdeficit • Information/legaladvicedeficit • Obstacles to judicialredress or access to courts

  5. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Barriers to access-to-justice 3. Obstacles to judicialredress or access to courts 3.1. Contracttermsdepriving or discouraging the consumer fromgoing to court = void as beingunfair. 3.2. Psychological/cultural obstacles, i.e. courts perceived as distant from consumer needs, not interested in ealingwithsmall claims, not neutral.

  6. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Barriers to access-to-justice 3.3. Formalism and time; repeatplayers (trader) vs. one-shot litigant (consumer). 3.4. Cost, i.e. lawyer’sfees, court/proceduralfees, expertise-relatedcosts. For small claims, costs are likely to exceed gains or benefits.

  7. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Barriers to access-to-justice 3.5. Limits to legal standing: • Individualinterest vs. Collective interestapproach • No legal standing to the competentmarket monitoring/surveillance authority to submit cases before civil courts. • Limited legal standing to COs (LCP, Art.137).

  8. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Barriers to access-to-justice 3.6. Lack of expertise of judges in consumer protection matters. 3.7. All abovedeficits and obstacles are even more actualwhen cross-border cases are atstake + 2 additional and complex issues: • Choice of competent court • Choice of applicable law

  9. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Plurality of enforcementmechanisms • Interplaybetween public enforcement and privateenforcementtools: • Public, i.e. prosecutors and market surveillance body(ies): adequatemarket monitoring, adequate sanctions includinginjunctions and means of collective redress. • Private, i.e. individualconsumers and Cos: adequate consumer remedies, includinginjunctions and means of collective redress.

  10. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Plurality of enforcementmechanisms 2. Interplaybetweenmandatory/binding and voluntary/non-bindingtools: • Mandatory/Binding: court decisions and arbitration sentences are binding on the parties. • Voluntary/Non-binding: use of ADRsschemesremainvoluntary; results of direct negotiation, conciliation attempt or mediationis not binding.

  11. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 The need to admit a wide range of enforcementmechanisms • Raising consumer awareness about theirrights (IPA project) • Developing a newtwork of legaladvicecenters (MFITT, COs) • Simplifyingjudicialredress for small claims and/or consumer disputes (Law on Civil Procedure, new chapters XXXIII and XXXV).

  12. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 The need to admit a wide range of enforcementmechanisms • Broadening the scope of injunctionsunder the LCP • Granting to COs and competentmarket surveillance body the right to seek compensation for the damage caused to the collective interest of consumers. • Promoting non-judicialmeans of consumer redress. = ADRs and ODRs.

  13. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Out-of-court disputes resolution of consumer disputes in EU member States • ADR schemes have emerged in all member States. • Countries with a more developed consensus culture are usually more advanced: e.g., Scandinavian countries, The Netherlands, Austria, Uk vs. France.

  14. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Out-of-court disputes resolution of consumer disputes in EU member States • There is a multitude of operating schemes: • direct negotiation, mediation, arbitration, mixed scheme. • Administrative system (Scandinavian countries) vs Collective bargainingamongprivatestakeholders (The Netherlands). • One-sided (Consumer call center) vs two-sided initiative. • Every state has itsown mix – No <ideal> ADR system.

  15. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 • Need to inform the consumer about the availability, conditions for access, nature, rules, cost and legal effect of the proposed scheme. • Need to ensure that the scheme is <consumer friendly> • Fair justice calls for a network of ADRs schemes throughout the country. = definition of common standards for the operation of ADR schemes = purpose of this seminar.

  16. SEMINAR ON OUT-OF-COURT DISPUTES RESOLUTION OF CONSUMER DISPUTESBelgrade, 27th and 28th June 2013 Agenda of this seminar Stage 1: EU response to the need for out-of-court resolution of consumer disputes: promoting ADRs, setting common standards, regulating ODRs. Stage 2: Experiences with out-of-court resolution of consumer disputes in Serbia: concepts and practice. Stage 3: ODRs Stage 4: IPA Project proposals regarding ADRs and ODRs in Serbia.

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