ESTUDIO JURÍDICO ALMAGRO ABOGADOS

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1 ONLINE DISPUTE RESOLUTION IN THE E.U. 1. Introduction to Online Dispute Resolution (ODR) New technologies are gradually making their appearance in the courts of justice as well as in ADR. E-commerce is particularly exposed to generate conflicts in the purchase-sale transactions because of two particularities: The parties are not both in the same place and there is no direct contact between seller and purchaser. The purchaser does not receive the object immediately but only a while after it has been paid. 19 November 2015 Torino (Italy) Table of contents 1. Introduction 2. Regulation 524/ Directive 2013/11 4.UNCITRAL s attempt 5. ODR in Spain Transactions can happen between C2C, B2C and B2B. However, from the point of view of conflicts, those which present the most interest are B2C transactions. Inside of these, those which are the most common are claims from the consumer in respect of the trader arising from issues with the quality of the product or delivery conditions. Claims from the trader against the consumer are also possible, although less likely, given that normally goods are prepaid. This type of controversy is mostly related to the means of payment with the intervention of credit card companies. In this new social and commercial context, it is necessary to protect the consumer as a means to foster e-commerce system itself, through the appropriate regulation of the on-line contracting process as well as to guarantee the consumer that he can make an on-line claim in connection with defects of the product or service acquired. Therefore in order to encourage the development of e-commerce and cross-border trade it is necessary to implement more agile and cheaper on-line claim procedures. Of course the fact of being a consumer cannot prevent you from having access to ordinary courts. However that access is made particularly difficult when the claimant is a consumer and the trader is established in another country, whether in the EU or beyond. Hence the importance of implementing ADR (mediation or arbitration) systems which can be accessed via on-line platforms which enable the consumer to obtain a response to their claims with the same ease that it is to purchase the goods. It is only logic to be able to file claims on-line, in the same way that the good was purchased. In general ODR systems are defined enabling the conduct of the entire procedure through electronic systems, including the transmission of documents, practicing witness declarations, appearances, trials, etc... Therefore ODR systems must be differentiated from simple use of electronic or 1

2 digital means for the notice or practice of specific procedural steps in a normal ADR procedure. In this context, EU Regulation 524/2013 intends to bring about an ODR platform that ADR entities can use as the virtual space (akin to a physical court of arbitration) where claimants and respondents converge to resolve a dispute. Such ADR entities must be compliant with Directive 2013/11/EU. 2. Regulation (EU) 524/2013 (and implementing Regulation (EU) 2015/1051) Entry into force: The Regulation shall apply directly in all member states from January 9 th 2016 (except from some provisions which obligate the Commission or member states, which apply from an earlier date). Under the Regulation the Commission is obliged to set up a European ODR platform for consumers and on-line traders (The ODR platform should be tested by the Commission by January 9 th 2015 and fully operative by January 9 th 2016). The ODR platform shall be used: For disputes stemming from online (excluding off-line) sales or service contracts between consumers resident in the EU and traders established therein with the intervention of an ADR entity listed in accordance with article 20 (2) of Directive 2013/11/EU. As regards disputes initiated by the trader against the consumer (e.g. debt collection), the possibility of using the ODR platform will depend on whether the legislation of the member state where the consumer resides allows such disputes to be resolved through ADR. Obligations for online traders established in the EU (whether selling goods or providing services) from January 9 th 2016 (article 14): All traders (whether or not they are committed or obliged to use one or more ADR entities to resolve disputes with consumers) shall provide on their websites an electronic, easily accessible link to the ODR platform and state their addresses. Those traders which are committed or obliged to use one or more ADR entities to resolve disputes with consumers, inform on the existence of the Commission s ODR platform and the possibility of using that ODR platform for resolving their disputes. They shall also provide an electronic link to the ODR platform and if the offer is made by , in that . They shall where possible provide all the foregoing information in their general terms and conditions. For their part, member states shall from that date: ensure that all ADR entities, centres of the European Consumer Centres Network, competent authorities of each member state defined in article 18 (1) of Directive 2013/11/EU and bodies designated in accordance with article 2

3 14(2) of Directive 2013/11/EU provide in their websites an electronic link to the ODR platform. Encourage consumer associations and business associations to provide an electronic link to the ODR platform- Lay down rules on penalties applicable to infringements of this regulation. Articles 5 et seq. of the Regulation lay down the technical conditions for the ODR platform: (a) Single point of entry for EU consumers and traders seeking out-of-court resolution of disputes covered by the Regulation. (b) user-friendly including by vulnerable users ( design for all ). (c) Accessible free of charge for consumers and ADR entities. (d) Usable in all official languages of the institutions of the EU. (e) Other specific characteristics in article 5.4. (f) All ADR entities listed in accordance with article 20(2) of the Directive (through competent authorities in each member state) will be registered electronically with the ODR platform. The ODR platform shall include an updated list of these certified ADR entities. (g) Use of the ODR platform shall not be compulsory for ADR entities, just an option. (h) Procedure for processing complaints through the Commission s ODR platform: - Completion of electronic complaint form and may attach documents. - Information must be sufficient to determine the competent ADR entity. - Procedure of designation of the competent ADR entity. - Transmission without delay of the complaint to the chosen ADR entity. - Acceptance or rejection of complaint by ADR entity. - If an ADR entity accepts to deal with the dispute it shall conclude the procedure within 90 days from receipt of the file (with possible extension in case of highly complex issues). 3. Directive 2013/11/EU Deadline of transposition: The directive should have been implemented by all member states by July 9 th Spain is not among member states having implemented it. Objectives: Its purpose is to ensure that consumers resident in the EU can on a voluntary basis submit to ADR any complaints against traders established in the EU stemming from service contracts or sales contracts. That access to ADR can be made mandatory by member states, provided that it doesn t prevent the parties from having access to the judicial system. 3

4 Therefore the directive does not apply to B2B or B2C complaints (e.g. debt recovery). The directive establishes harmonized quality requirements for ADR entities and ADR procedures to ensure consumers have access to high-quality, transparent, effective and fair ADR mechanisms across the Union. Only Directive-compliant ADR entities (certified by the competent authorities ) can access the Commission s ODR platform, but they shall not be obliged to use it. On-line access is included among those quality requirements: Member states shall ensure that ADR entities established in their territory: Maintain a website which provides the parties with easy access to information concerning the ADR procedure and which enables consumers to submit an ADR complaint and the requisite documents online. This means that ODR is NOT compulsory for ADR entities, given that only the on-line filing of the complaint and access to information must be made available on-line, not the whole procedure. Member states shall ensure effectiveness (article 8) of the ADR procedure in the following ways: (i) (ii) (iii) (iv) The ADR procedure must be available and easily accessible online (ODR) and offline to both parties, wherever they are. Guarantee having access to the procedure without having to retain a lawyer (without prejudice to their right to have one). The ADR is free of charge or subject to nominal charge for consumers. The outcome is available within at most 90 calendar days from receipt of the full complaint (extensible in highly complex cases). As regards consumer information (article 13) member states shall ensure that traders established in their territory: If they are committed or obliged to use one or more ADR entities to resolve disputes with consumers, they shall inform consumers in their website and general terms and conditions about that ADR entity (including that ADR entity s website). If a dispute from a consumer against a trader established in their territory cannot be settled further to a direct complaint from the consumer, the trader shall inform the consumer on whether it is committed or obliged to use a particular ADR entity (specifying its name and website), and specify whether he shall use of the relevant ADR entity to settle that dispute. That information shall be provided on paper or another durable medium. 4

5 All existing and new ADR entities established in the EU which intend to qualify as ADR entities under the directive and be listed in accordance with article 20(2) must undergo the specific accreditation process through the competent authorities designated in each country. 4. Other international attempts to encourage ODR UNCITRAL (United Nations Commission on International Trade Law) has set up a Working Group which aims to agree on the principles of an ODR process. By contrast to the European approach (which aims to protect the consumer in C2B disputes), UNCITRAL s project has a more neutral approach, contemplating an ODR procedure which would apply to B2B and B2C disputes alike. The UNCITRAL s principles could act as a standard for all non EU countries as regards ODR procedures, to the same extent as UNCITRAL s work on ADR has served as inspiration for many countries laws on the subject. The UNCITRAL s initiative is largely supported by the large e-commerce companies and by the U.S., among other things in order to encourage the development of e- commerce. The Working Group s intention (at least from the U.S. s perspective) is for consumers to sign a submission clause where-under they would commit to a specific ODR system when they enter into an e-commerce transaction. This is just the opposite of what the EU authorities contemplate in European legislation. The arbitration award would be binding for the parties. It will not be free of charge and each party would pay for its own cots. 5. Current situation of ODR in Spain The regulation of on-line ADR procedures has been made both in the framework of mediation as in arbitration. However, in practice it remains just a formal regulation, without significant development in practice. Directive 2013/11/EU has not yet been implemented. There has been a project processed through parliament, but it has not yet been approved and it will not be approved before the next general elections (December 20 th 2015). So it is not very illustrative of what its contents will be. Hopefully, the entry into force of the ODR platform contemplated by Regulation 524/2013, on January 9 th 2016 will finally signify the advent of electronic systems in the framework of ADR. There are just a few articles on Consumer ODR in Royal Decree 231/2008 dated February 15 th on Consumer Arbitration: - Just like in the Regulation, ODR is defined as the procedure which is fully carried out by electronic means, as opposed to use of electronic means to 5

6 conduct particular arbitral procedure steps. However it still permits the practice of specific procedural steps via traditional means for the parties convenience. - ODR procedures shall be administered through the electronic systems and technological applications (platforms) to be set up by Juntas Arbitrales de Consumo ( Consumer Arbitral Boards ). In turn these Consumer Arbitral Boards can use the platforms used by other Consumer Arbitral Boards. The Ministry of Health and Social Policies shall create a platform and in general promote the use of ODR. No such platforms have been created to date to my knowledge. - The identification of the parties shall be guaranteed by means of electronic signature or other similar means which permit to achieve the same result. - It also provides that the date of notification is the day following access to the notice. If there is no access within 10 days, then notification shall be considered to have failed and notification shall be made via publication in the website of or the Consumer Arbitration Board. - For purposes of determination of the court competent for appeals, the place of arbitration shall be considered the location from which the award is issued and, failing that, the place where the Consumer Arbitration Board has its seat. Law 5/2012 dated July 6th on mediation also provides expressly that the parties can agree that all or part of procedural steps (including the initial and any subsequent sessions) be carried by electronic means, video-conference or any other similar means of transmission of voice or image, provided that the identity of intervening parties (e.g. by means of electronic signature or electronic ID card) and the respect of mediation principles are guaranteed. Any mediation consisting of a monetary claim not exceeding 600 euros shall be preferably conducted by electronic means. However no specific platforms have been developed in practice. For any further information please contact: Juan Escudero Herreros Corporate and Commercial Law jeh@eja.es Phone Fax