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Organization of American States
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Inter-American Juridical Committee report |
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POSSIBLE
TOPICS FOR CIDIP VII
(presented
by Drs. Carlos Manuel Vázquez and João Grandino Rodas)
Recipients
of a questionnaire concording possible topics for
CIDIP-VII were asked their views on which
topics they regarded as the most pressing and appropriate
for treatment in CIDIP-VII. A large number
of topics were proposed. Attached as Appendix II
is a list of the topics suggested by respondents
to the questionnaire, ranked according to the frequency
with which they were cited. The most frequently
cited topic was electronic commerce. Other
topics frequently cited in the responses include:
(a) migration and free flow of persons; (b) arbitration
and dispute resolution; (c) consumer protection;
and (d) the protection of minors. [Another proposed
topic that we think deserves consideration for possible
treatment in CIDIP-VII is that of transnational
insolvency.] We recommend that topics mentioned
above be given riority consideration in CIDIP VI
as possible topics for CIDIP VII.
With
few exceptions, the respondents did not explain
their reasons for believing that the topics they
proposed were appropriate for treatment through
the CIDIP process at this time. This forbearance
on the part of the respondents is due, no doubt,
to their recognition that the selection of topics
for CIDIP-VII will at all events require substantial
preparatory work by the Secretariat for Legal Affairs (SLA)
and/or outside experts on the topics being considered,
including a collection of data concerning the internal
laws of the Member States on the various topics
and the preparation of analyses of prior efforts
to address the issue internationally and of the
feasibility of successfully addressing the topic
in this region. It will also require
a determination of the political interest of the
Member States in addressing the topic through CIDIP.
For these reasons, it is impossible to do more at
this stage than put forward a number of general
topics that seem worthy of further consideration
as possible subjects to be addressed in CIDIP-VII.
These topics should be discussed at CIDIP-VI, and
those that seem most pressing and most appropriate
for treatment at a regional level should then be
the subject of further preparatory work before being
approved definitively as the topics to be treated
in CIDIP-VII.
For
the purpose of facilitating discussion, we offer
a few thoughts on each of the topics listed above:
Electronic
commerce. E-commerce is of course a very recent
phenomenon, made possible by the recent and rapid
development of the Internet. The novelty of
the subject means that few states have developed
regulations specifically for this type of commerce.
Most states today regulate e-commerce through regulations
developed for more conventional forms of commerce.
The first question to be considered is whether e-commerce
is a sufficiently different form of commerce that
it deserves distinct regulatory treatment.
Our respondents’ proposal of e-commerce as a topic
for CIDIP VII that they believe this subject does
deserve distinct treatment. In the light of
the substantial work that has already been done
on this topic at both the global and regional levels,
we are inclined to agree.
The
next question is whether the subject deserves to
be treated at the regional level. As noted,
few Member States have developed regulations dealing
specifically with e-commerce. It may well
be preferable to allow the Member states to experiment
with domestic regulation, and to address the subject
regionally only after the states have acquired a
bit of experience with domestic regulation.
On the other hand, because e-commerce is very likely
to cross national borders, it seems likely that
regional treatment will be desirable sooner or later.
It may thus be preferable to address this novel
topic internationally before a wide variety of approaches
to the subject emerges at the national level.
Once states begin to develop their own approaches
to the subject, it may become more difficult to
reach agreement on a uniform regional approach.
An
important related question is whether it will be
possible to reach agreement on how to regulate this
topic. There are those who take the position
that e-commerce should be left unregulated to the
extent possible -- that regulation will hinder innovation
in this still emerging area. On the other
hand, some regulation is unavoidable: fraud
and other deceptive practices, for example, cannot
be left unregulated. The form and extent of
appropriate regulation in this area is of course
the key question that would be addressed in the
course of the CIDIP process. But if there
exists too wide a range of views on appropriate
approaches to regulating e-commerce, this may suggest
that it is too soon to begin an effort to establish
a uniform regional approach to this issue.
Even if this were the case, however, it may be possible
to agree to prohibit certain approaches to the topic,
thus limiting permissible regulation to a narrower
range. It may also be possible and desirable
to pursue the more modest goal of agreeing on the
applicable law and approaches to jurisdiction with
respect to disputes involving e-commerce.
Aspects
of e-commerce have been addressed at both the global
and regional levels. UNCITRAL has a Working
Group on E-Commerce, which so far has produced a
Model Law on Electronic Commerce (1996)[i]
and a Model Law on Electronic Signatures (2001).[ii]
Legislation based on the UNCITRAL Model Law on Electronic
Commerce has been adopted in Australia, Bermuda,
Colombia, France, Hong Kong Special Administrative
Region of China, Ireland, Philippines, Republic
of Korea, Singapore, Slovenia, the States of Jersey
(Crown Dependency of the United Kingdom of Great
Britain and Northern Ireland) and, within the United
States of America, Illinois. Uniform legislation
influenced by the Model Law and the principles on
which it is based has been prepared in Canada (Uniform
Electronic Commerce Act, adopted in 1999 by the
Uniform Law Conference of Canada) and in the United
States (Uniform Electronic Transactions Act, adopted
in 1999 by the National Conference of Commissioners
on Uniform State Law) and enacted as law by a number
of jurisdictions in those countries.
The UNCITRAL Working Group has also produced a “preliminary
draft convention on [international] contracts concluded
or evidenced by data messages,”[iii]
and its agenda includes as well (a) the identification
and elimination of barriers to e-commerce present
in existing treaties, (b) dematerialization of documents
of title, (c) and electronic dispute resolution.
At
the regional level, the European Union has issued
Directive 2000/31/EC of the European Parliament
and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular
electronic commerce, in the international market,
as well as Directive 1999/93/EC of December 13,
1999 on Electronic Signatures.
In
the view of the Committee, this is clearly a topic
that deserves priority consideration for treatment
at a future CIDIP. We recommend that this
topic be the subject of further preparatory work
to determine if now if the time to treat it at the
Inter-American level.
Consumer
Protection. The topic of consumer protection
overlaps significantly with that of e-commerce,
but it is in some respects narrower and in some
respects broader. It is narrower because not
all e-commerce involves consumers. It is broader
because there is a need for consumer protection
with respect to non-electronic as well as electronic
commerce. The need for transnational consumer
protection is particularly acute with respect to
electronic commerce, however, because “the online
environment provides unprecedented opportunities
for fraudulent, dishonest or unfair businesses to
target consumers from a different jurisdiction and
evade enforcement authorities.”[iv]
Since e-commerce has been suggested as a separate
topic, one issue to be considered is whether consumer
protection in the field of e-commerce should be
addressed as part of the e-commerce topic or the
consumer protection topic.
Harmonization
of consumer protection rules can be expected to
increase transnational commerce in consumer goods.
Wide discrepancies in national consumer protection
laws can be expected to produce a lack of consumer
confidence to participate in cross-border transactions,
which in turn deters small and medium-sized businesses
from offering their products abroad. It is
for this reason that the European Union has given
priority to this topic. Even though there
exist numerous directives of the European Parliament
and Commission relating to various aspects of consumer
protection, the Commission has perceived a need
for more comprehensive and systematic treatment
of the subject. It has accordingly undertaken
several studies of the subject, and it has issued
a Green Paper on European Union Consumer Protection.
The Green Paper is a consultation document that
outlines possible options for consumer protection
in the EU and seeks comments from interested parties
as to the desirability of pursuing the subject and
the possible directions for pursuing it. The
Green Paper requests that comments be submitted
by January 15, 2002.
In
the Western Hemisphere, a model law on consumer
protection has been drafted by Consumers International’s
Regional Office for Latin America.[v] The first version of the
model law was issued in 1987, and an updated version
in 1994. The model law was drafted “in a consultation
process with experts convoked under the CI umbrella
– and not by governments.”[vi] According to Consumers
International, the model law “has been used for
drawing up national legislation in 14 Latin American
countries (including Brazil, Argentina, Ecuador,
Peru, Mexico, Nicaragua, Costa Rica, and Chile).”[vii]
Nevertheless, Consumers International
believes that additional work is necessary because
“these national laws do not necessarily include
all the provisions of the model law,” and “[o]ther
countries, such as Bolivia, Uruguay and Guatemala,
still lack specific consumer protection legislation.”[viii]
This view accords with that of some of our respondents,
who observed that most Latin American countries
lack laws protecting consumers in the areas of accidents
caused by defective products, injuries suffered
by tourists, and marketing fraud.[ix]
At
the subregional level, there have been attempts
to address consumer protection within Mercosur.
Consumer Defence Regulations were developed over
four years by a technical commission of Mercosur.
They were to be signed in December 1997, but they
were opposed by consumer groups in Brazil, who believed
that the regulations would have weakened consumer
protection in that country, and the regulations
were not adopted when the Brazilian delegation refused
to sign them. The technical commission then
abandoned the idea of developing a comprehensive
text and instead pursued the harmonization of specific
aspects of consumer protection.
Migration
and Free Flow of Persons. This is a topic
that appears to extend well beyond the scope of
private international law and into the realm of
public international law. Determining who
can enter a country’s territory and under what circumstances
has traditionally been considered among the most
basic attributes of sovereignty. On the other
hand, reducing restrictions on immigration and free
flow of persons often goes hand in hand with increasing
economic integration. The increasing economic
integration of the hemisphere may thus warrant a
focus on this topic. However, because of the
link to the ongoing FTAA negotiations, and because
this topic extends well beyond the realm of private
international law as traditionally understood, we
recommend that the advisability of addressing this
topic through CIDIP be considered as part of the
broader study of the future of CIDIP proposed in
Part I of this Report.
Arbitration
and Dispute Resolution. This topic has of
course been addressed at the global level through
the New York Convention.[x]
In addition UNCITRAL has done much work in this
field. The UNCITRAL Arbitration Rules are
widely used. UNCITRAL’s Model Law on Commercial
Arbitration has been has been incorporated into
the domestic law of numerous states. The UNCITRAL
Working Group on Arbitration is studying adherence
to the model law. Other priority items listed
on its September 20, 2001 agenda include crafting
uniform rules on the issues of (1) conciliation,
(2) requirement of a written form for the arbitration
agreement, (3) enforceability of interim measures
of protection, and (4) enforcement of an award that
has been set aside in the state of origin.
At
the regional level, aspects of this topic have been
addressed through Inter-American Convention on International
Commercial Arbitration[xi]
adopted at CIDIP-I now having 17 ratifications,
as well as the Inter-American Convention on Extraterritorial
Validity of Foreign Judgments and Arbitral Awards[xii]
adopted at CIDIP-II having 10 ratifications.
The
respondents who explained their interest in this
topic appeared interested primarily in dispute settlement
related to free trade agreements and/or the resolution
of investment disputes between private companies
and the state. [xiii] While further
discussion may reveal the need to address this topic
now, it may be preferable to defer this topic until
the FTAA negotiations are further along.
Protection
of Minors. At the global level, aspects of
this topic have been addressed in the Hague Convention
Concerning International Child Abduction,[xiv]
Hague Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement, and Cooperation in Respect
of Parental Responsibility and Measures for the
Protection of Minors,[xv]
the 1993 Hague Intercountry Adoption Convention,
the Hague Maintenance Obligations Conventions and
the New York Convention of 10 June 1956 on the Recovery
Abroad of Maintenance.
In
the Americas, aspects of the topic have been addressed
in the Inter-American Convention on Conflict of
Laws Concerning the Adoption of Minors[xvi]
adopted at CIDIP-III and now having 4 ratifications;
the Inter-American Convention on the International
Return of Children[xvii]
adopted at CIDIP-IV and now having 7 ratifications;
the Inter-American Convention on Support Obligations[xviii]
adopted at CIDIP-IV and now having 10 ratifications;
and the Inter-American Convention on International
Traffic in Minors[xix]
adopted at CID`IP-V and now having 9 ratifications.
Respondents who proposed this topic identified family
relations, patrimony, custody, and visitation as
issues that could be addressed.[xx]
[iv]
Commission of the European Communities, GREEN
PAPER on European Union Consumer Protection
(2.10.2001).
[ix]
Response of Lima Marques, at 1.
[x]
U.N. Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the “New York Convention”),
Jun. 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S.
3.
[xi]
Inter-American Convention on International Commercial
Arbitration, Jan. 30, 1975, 14 I.L.M. 336 (1975).
[xii]
Inter-American Convention on Extraterritorial
Validity of Foreign Judgments and Arbitral Awards,
18 I.L.M. 1224 (1979).
[xiii]
See, e.g., Response of Professor Francisco Orrego
Vicuña of Chile.
[xiv]
Hague Convention on the Civil Aspects of International
Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501
(1980).
[xv]Oct.
19, 1996, 35 I.L.M. 1391 (1996).
[xvi]
Inter-American Convention on Conflict of Laws
Concerning the Adoption of Minors, May 24, 1984,
24 I.L.M. 460 (1984).
[xvii]
Inter-American Convention on the International
Return of Children, Jul. 15, 1989, 29 I.L.M.
63 (1990).
[xviii]
Inter-American Convention on Support Obligations,
Jul. 15, 1989, 29 I.L.M. 73 (1990).
[xix]
Inter-American Convention on International Traffic
in Minors, Mar. 18, 1994, 33 I.L.M. 721 (1994).
[xx]
Response of Tatiana B. de Maekelt of Venezuela.
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