Alternative and Online Dispute Resolution for Cross-Border Consumer Contracts: A Critical Evalution of the European Legislature's Recent Efforts to Promote Competitiveness and Growth in the Internal Market

Abstract

In May 2013 the European legislature has enacted two legislative measures relating to alternative dispute resolution in consumer matters: the Directive on Alternative Dispute Resolution (ADR-Directive) and the Regulation on Online Dispute Resolution (ODR-Regulation). Both measures are meant to support the out of court settlement of consumer disputes in order to ensure that consumers have easy and low-cost – short: better – access to justice. The following article analyses whether, and to what extent the ADR-Directive and the ODR-Regulation manage to achieve this aim in view of cross-border consumer con-tracts. It is organized in four parts. The first part sheds light on the European legislature’s competence to regulate ADR and explains why this articles focuses on cross-border con-tracts (infra II). The second part analyses the potential benefits of cross-border ADR, i.e. alternative dispute resolution in the context of cross-border consumer contracts (infra III.). The third part details the specific problems of cross-border ADR (infra IV.). The fourth part determines whether and to what extent the ADR-Directive and the ODR-Regulation are able to solve these problems and to foster cross-border ADR (infra V.). The article finds that the ADR-Directive and the ODR-Regulation – while providing relief for some of the problems associated with cross-border ADR – fail to solve the two core problems: competence and language. It follows that it is unlikely that the ADR-Directive and the ODR-Regulation will actually boost cross-border ADR and enhance consumer access to justice.

Keywords: ADR, Alternative dispute resolution, Consumer contracts, Distortion of competition, Fundamental freedoms, Harmonization, Internal market, Judicial cooperation in civil and commercial matters, Principle of conferral, ODR, Online dispute resolution, TFEU