[Ecommerce] Re: Pippa's message, formatting fixed

[James Love]

Pippa wrote:
> 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.

   Well, good luck getting the GBDe and the various proponents of this
(including people in various government delegations) to put their cards
on the table.  We have had endless meetings about ADR, without any
context or explanation as to why governments are so worried about how
these big companies can keep their consumers happy.  In Basel, there
was, apparently, a paper that had mentions of ADR, but again, to very
specific as to the Convention.  Manon can provide some details of
this.    That said, it should be obvious what is going on... much of
which was outlined in the 1999 ecommerce meeting held in Geneva, which
is on the Hague Conference web page, and linked to our Hague convention
web page.  It's about a "safeharbor" type approach on ecommerce and
privacy, and maybe IPR.... business wants it run by the private sector.
The various business groups have made countless presentations
recommending this over the past couple of years.  

> 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. 

    The Hague Convention is about jurisdiction and private judgements.  
In what sense is this about "last resorts"?  In the sense that
litigation isn't the first thing one thinks about?

    [snip]

> 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. 

   Ok, who sets the standards?  Isn't this the interesting issue?

>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]

      Ok.  Who does CI want to provide the oversight?  Exactly what
organization represents global consumers in these matters?  Forget out
the lack of transparency on the other side.  What the hell do we want?

> 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.

    Well, lets see, the USG has a brand new President.  The EU hasn't
laid its cards on the table completely, and have others either?  So your
suggestion is what?  That we refuse to have any voice in this?  We just
let the GBDe pount away, and we sit it out and complain that no one
tells us anything?

> 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). 

        In the last Ottawa meeting, I thought that you were representing
CPT.  Did I miss something?

>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)?

   Which meeting?  There are lots and lots of meeting now.  There was
just the meetings at the Hague and Basel, next is WIPO in Geneva on
January 30, then Ottawa, a meeting in Scotland, the FTC meeting,
anything we can organize by ourselves on IPR........   

   Were people kept out of the last Ottawa meeting, or did they just not
go? 

   I was refussed a place in the Hague ADR meeting on the UDRP panel, by
the OECD.  I was accepted by WIPO for an IPR panel (the Jan Geneva
meeting), and so far I have not be accepted in the Ottawa meeting. 
Manon is on the USG delegation in the government meetings, but in the
last two government meetings, Washington, DC or Basel, there were no
other consumer reps on any of the other country delegations, including
the Canadian delegation, which had, I believe, people from the private
sector. 

> 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.

   Yes, those notes would be useful, for everyone.

> 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.
   
    I wasn't in the Hague meeting, but really, is there any question but
that the business community wants a simplified global set of rules that
it controls, as an alternative to dealing with national laws on consumer
protection and privacy?  This is really about deregulation and control
of norm setting and enforcement, it seems to me.

> 
> 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.

   Ok, but what about your note regarding having conditions for
participation?  

  Jamie

-- 
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