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
Forthcoming in: 38 Journal of Consumer Policy [J. Consum. Pol.] 2015
36 Pages Posted: 19 Jul 2015
Date Written: June 1, 2015
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
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