[Ecommerce] ADR and Hague Convention; Feb.6th meeting

[James Love]

Subject: ADR and Hague Convention; Feb.6th meeting
   Date: Fri, 22 Dec 2000 12:10:25 -0500
   From: Pippa Lawson <pippa@web.ca>
     To: James Love <love@cptech.org>

Jamie: could you please post this to the listserv, as I seem to be
unable to?
thanks.
Pippa

Are there any clear (written) proposals for incorporating ADR into the 
Hague Convention? I have not seen any yet, despite a lot of vague talk 
about it. I find it difficult to discuss this issue without having a
clear 
proposal on the table.

The Hague Convention is about last resort, when the consumer can't
obtain 
redress directly from the merchant or via some other easier avenue such
as 
ADR. Straightforward choice of forum rules are needed for these rare
cases. 
If effective ADR options exist, consumers will use them. I don't see how
or 
why rules regarding applicable forum in legal cases need to (or should) 
refer to ADR or any other out-of-court redress avenue. This seems to be 
unduly complicating what should be a simple matter of applicable forum
in 
cross-border court cases. (But I say this with an open mind - I just 
haven't seen or heard any convincing proposal for incorporating ADR into 
the Convention.)

With respect to models of governance for ADR, there is, I think, more to 
discuss. CI is recommending international standards for B2C ADR so that
we 
can identify and weed out the inadequate services, while encouraging the 
development of truly effective ADR services for consumers. CI is also 
calling for an effective oversight regime of some sort, to ensure that 
online ADR services being used by businesses comply with these
standards, 
and to coordinate among the many ADR services so that consumers can find 
the appropriate form of ADR for their particular complaint. Such
standards 
and oversight are needed regardless of the outcome of the Hague
Convention 
negotiations. [NB: For those who haven't seen it, CI's report on dispute 
resolution for consumers in cross-border ecommerce disputes is now 
available - see http://www.consumersinternational.org]

Before agreeing to participate in such a meeting, I would insist that 
proposals be put on the table so that we know what we are talking about.

One consideration re: participants is that we (consumer groups
generally) 
will want to have as strong a presence as possible at the actual Hague 
Convention negotiations, which as I understand it will be in Ottawa
(again) 
in late February. It would be sensible for those involved in the Hague 
Convention talks to participate in the FTC advance session, and vice
versa. 
Last time, Ursula was basically on her own (I was on the Canadian 
delegation, hence unable to be as vocal). We need to have a stronger 
consumer presence at the next Hague Convention meeting. Who else is 
planning to attend either via a national delegation or an independent 
consumer delegation? Regarding the latter, what has been agreed to by
the 
Hague Conference (or who is working on it)?

Also, a number of us participated in the 2 day OECD/ICC/Hague Conference 
workshop on ADR for B2C ecommerce disputes in The Hague a couple of
weeks 
ago. I'm expecting the OECD to post some kind of meeting results/notes.
In 
any case, though, it would be useful to for those involved in the
Feb.6th 
meeting to be aware of what was discussed in that forum.

As Louise Sylvan has pointed out, one realization that dawned on some of
us 
during that session was that we are to some extent talking at 
cross-purposes with our business colleagues. In particular, business and 
many ADR reps are thinking in terms of relatively balanced "disputes" 
between two parties, whereas consumer reps see the problem more in terms
of 
legitimate consumer complaints and the need for consumer redress. The 
former are well suited to typical ADR, but the latter are not
necessarily 
amenable to mediation or other forms of ADR that require compromise on
the 
part of the consumer. In particular, where consumer rights are at stake, 
what is needed is adjudication, not negotiation. By using the term 
"dispute" rather than focusing on "consumer redress", we may be
unwittingly 
accepting a distorted characterization of the underlying problem.

As for participation, I'd be happy to, given all the work I've been
doing 
on this topic, and given the upcoming Hague Convention negotiations in 
which I hope to participate, but would need to have my travel expenses 
covered.

Pippa



------------------------
Philippa Lawson
Counsel
Public Interest Advocacy Centre
1204 - 1 Nicholas St.
Ottawa, Ontario  K1N 7B7
tel: (613) 562-4002 ext.24
fax: (613) 562-0007
e-mail: pippa@web.ca
PIAC webpage: http://www.piac.ca

-- 
James Love  <love@cptech.org>  http://www.cptech.org
Consumer Project on Technology, P.O. Box 19367, Washington, DC 200036
voice 1.202.387.8030 fax 1.202.234.5176