Access to Justice in Transnational B2C E-Commerce

Access to Justice in Transnational B2C E-Commerce

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Sutatip Yuthayotin Access to Justice in Transnational B2C E-Commerce A Multidimensional Analysis of Consumer Protection Mechanisms

Sutatip Yuthayotin Central Intellectual Property and International Trade Court Bangkok Thailand ISBN 978-3-319-11130-8 ISBN 978-3-319-11131-5 (ebook) DOI 10.1007/978-3-319-11131-5 Springer Cham Heidelberg New York Dordrecht London Library of Congress Control Number: 2014955666 Springer International Publishing Switzerland 2015 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Acknowledgements First and foremost I would like to thank the Japanese Government, without whose financial support through the Monbukagakusho Scholarship, this Ph.D. research would not be possible. My greatest debts of gratitude go to my principal supervisor, Professor Kono Toshiyuki; without his kindheartedness, professional and valuable criticisms with the foresight of his extensive experience, it would not be possible for me to complete this dissertation. I was also influenced by my second supervisor, Professor Mark Fenwick, who always kindly listens to my ideas and from whom I received numerous suggestions during the development of this dissertation. The thought of pursuing the doctoral research was first brought to my attention by Professor Caslav Pejovic, who has always believed in me and kindly introduced the Ph.D. research opportunity to me 4 year ago and from whom I always receive gentle support. I have also been particularly fortunate to have benefited from the invaluable guidance of Professor Han Sang Hee, without his advice and suggestions for overcoming all the challenges along the way this thesis would never be completed. I am also grateful to Professor Steven Van Uytsel, who gives me valuable advice and nudges towards writing all it down during the first 2 years of my research. This allows me to finish this project in a respective timeframe. Also I would like to thank Mr. Anand Venkatachalam, SPi Global, India, Professors of Kyushu University, School of Law (i.e. Professor Ago Shin-ichi, Professor Teramoto Shinto, Professor Stefan Wrbka, etc.) for their kind comments on my annual presentation during my threeyear research. Many thanks go to my friends and colleagues; Paulius Jurcys who has contributed to my thoughts and whose advice and support were indispensable in completion of this dissertation. I also wish to deeply thank Sean McGinty for his review and comment on the first draft of this work. Finally and most importantly, I must thank my family, without their encouragement, moral support and love, I would not be able to undertake and complete this project. v

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Abbreviations and Constructed Terms BBB CIArb CRD DPD ECD ECJ ESCP GNI GPA ICPEN ODR OECD OFT SCP UCC UCITA UTD Brussels Regulation Better Business Bureau UK Chartered Institution of Arbitrators Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data 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 Internal Market European Court of Justice Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure Global Network Initiative Group Proceedings Act of 2002 of Sweden International Consumer Protection Enforcement Network Online Dispute Resolution Organization for Economic Cooperation and Development UK Office of Fair Trading Small Claim Procedure US Uniform Commercial Code US Uniform Computer Information Transactions Act Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters vii

viii Cooperation Regulation Injunction Directive Rome I Regulation Second Restatement Abbreviations and Constructed Terms Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers interests Council Regulation (EC) No. 593/2008 on the law applicable to contractual obligation US Second Restatement of Conflict of Laws

Contents 1 Introduction... 1 1.1 Background...................................... 1 1.2 Aim and Structure of Research... 3 1.3 Contribution to the Existing Academic Debates............ 6 1.4 Methodology... 8 1.5 Scope of Research................................. 8 2 Consumer Protection in B2C E-Commerce: Enhancing Consumer Confidence... 11 2.1 Introduction..... 11 2.2 Transnational B2C E-Commerce, Economic Growth, and Emerging Markets..... 12 2.2.1 A Brief History of B2C E-Commerce... 12 2.2.2 Distinctive Features of B2C E-Transactions... 14 2.2.3 B2C E-Commerce and Global Economic Growth..... 17 2.2.4 B2C E-Commerce and Economic Growth in Emerging Markets...... 19 2.2.5 B2C E-Commerce and Consumer Confidence........ 22 2.3 Competing Rationales for Consumer Protection..... 26 2.3.1 Traditional Rationale I: Lack of Knowledge and Information Asymmetries.... 27 2.3.2 Traditional Rationale II: Lack of Bargaining Power and Standard Terms..... 29 2.3.3 Traditional Rationale III: Behavioral Economic Problems................................... 31 2.3.4 Traditional Rationale IV: Failures of Traditional Forms of Litigation................................ 33 2.3.5 The Emergence of Consumer Confidence in Global Debates on B2C E-Commerce... 34 2.4 Interim Conclusion..... 36 ix

x Contents 3 Access to Justice: A Goal for Consumer Protection... 37 3.1 Introduction..... 37 3.2 Historical Debate on Access to Justice...... 38 3.2.1 Review of Main Points from the Nineteenth Century... 38 3.2.2 Initial Focus on Legal Representation.............. 40 3.2.3 Movement Toward a New Kind of Rights: The Diffuse and Fragmented Rights........................ 41 3.2.4 Universal Thoughts on Access to Justice... 44 3.3 Contemporary Debates on Access to Justice............... 45 3.3.1 New Movements of Access to Justice... 45 3.3.2 Enhancing Access to Justice.... 47 3.4 Important Underlying Consumers Access to Justice... 48 3.4.1 Consumers Access to Justice I: Socio-Legal Perspective..... 49 3.4.2 Consumers Access to Justice II: Economic Perspective..... 51 3.4.3 Contemporary Debates......................... 54 3.4.4 Enhancing Consumers Access to Justice......... 61 3.5 Interim Conclusion..... 62 4 Towards a Multidimensional Approach to Access to Justice: Setting a Framework for Consumer Protection in B2C E-Commerce... 65 4.1 Introduction..... 65 4.2 Sufficient and Accurate Information and the Ability to Digest Information... 68 4.3 Availability of Variety of Goods and Services at Appropriate Prices... 74 4.4 Freedom of Choice and Ability to Make Rational Decision.... 77 4.5 Fair Terms and Conditions......... 81 4.6 Right of Withdrawal... 84 4.7 Performance of Obligations........................... 86 4.8 Consumers Privacy... 88 4.9 Consumers Safety................................. 89 4.10 Reasonable Cost of Transaction.......... 91 4.11 Right to Conduct Dispute Resolution in a Convenient Location.... 93 4.12 Access to Effective Dispute Resolution Process... 95 4.13 Enforcement of Remedies or Redress... 98 4.14 Fair Trading Practices............................... 100 4.15 Recognition of Consumers Rights and Their Role in the Market... 102 4.16 Interim Conclusion...... 104

Contents xi 5 Substantive Mechanisms for Achieving Access to Justice... 107 5.1 Introduction..... 107 5.2 Standard Term Mechanism... 109 5.2.1 Overview of Standard Term Validation Principles... 110 5.2.2 Evaluation of Standard Term Validation Principles.... 113 5.2.3 Overview of Unfair Term Regulations... 116 5.2.4 Evaluation of Unfair Term Regulations...... 117 5.2.5 Overview of Unconscionability Doctrine............ 123 5.2.6 Evaluation of the Unconscionability doctrine.... 125 5.3 Information Disclosure Mechanism... 132 5.3.1 Overview of Information Disclosure Rules.... 133 5.3.2 Evaluation of Information Disclosure Rules......... 135 5.4 Withdrawal Mechanism.... 145 5.4.1 Overview of the Withdrawal Rules... 145 5.4.2 Evaluation of the Withdrawal Rules... 147 5.5 Privacy Mechanism...... 157 5.5.1 Overview of the Privacy Protection Rules........... 158 5.5.2 Evaluation of the Privacy Protection Rules.......... 160 5.6 Interim Conclusion..... 174 6 Procedural Mechanisms for Achieving Access to Justice... 177 6.1 Introduction..... 177 6.2 The Small Claim Mechanism......................... 179 6.2.1 Overview of Small Claim Procedure........... 180 6.2.2 Evaluation of Small Claim Procedure.............. 182 6.3 Collective Redress Mechanism...... 186 6.3.1 Overview of Group Action Procedure.............. 187 6.3.2 Evaluation of Group Action Procedure Regulation... 189 6.4 Regulatory Agency Mechanism.... 198 6.4.1 Overview of Consumer Ombudsmen...... 199 6.4.2 Evaluation of Consumer Ombudsmen.... 202 6.5 Interim Conclusion..... 209 7 Transnational B2C E-Commerce: Legal Harmonization and the Need for a Second Best Option... 213 7.1 Introduction..... 213 7.2 Overcoming the Difficulties from Transnational B2C E-Commerce via Legal Harmonization... 214 7.2.1 Harmonization via Private International Law... 214 7.2.2 Harmonization via Substantive Consumer Law... 222 7.2.3 The Limits of Legal Harmonization and the Need for a Second Best Option.... 225

xii Contents 7.3 Towards the Second Best Option : Access to Justice Through Private Ordering................................... 228 7.3.1 Dispute Avoidance Mechanisms.................. 229 7.3.2 Dispute Settlement Mechanisms... 236 7.3.3 The Potentials of Private Ordering in Transnational B2C E-Commerce from the Perspective of Access to Justice............... 241 7.3.4 The Limitations of Private Ordering from the Perspective of Access to Justice........................... 247 7.4 Interim Conclusion..... 252 8 Improving Consumers Access to Justice in B2C E-Commerce: Private Ordering and State as Intermediary... 255 8.1 Introduction..... 255 8.2 Overcoming Limitations: The Potential of an Intermediary.... 256 8.2.1 What Is an Intermediary?...... 256 8.2.2 What Is an Intermediary in Facilitating Private Ordering?..... 258 8.2.3 Reasons for an Intermediary in Facilitating Private Ordering...... 260 8.2.4 What Are the Possible Options?.................. 262 8.3 State as an Intermediary in Facilitating Private Ordering...... 265 8.3.1 Transnational Nature of B2C E-Commerce and Globalization.... 266 8.3.2 Failure of the Market from the Perspective of Access to Justice... 270 8.3.3 Public Interest Orientation...................... 271 8.4 State Role as an Intermediary in Facilitating and Extracting the Benefits of Private Ordering... 271 8.4.1 Public Funding.............................. 272 8.4.2 Information Dissemination..... 273 8.4.3 State Advisory....... 275 8.4.4 State Monitoring... 279 8.4.5 Global Network.............................. 282 8.4.6 State as Intermediary in Facilitating Private Ordering in the Emerging Market........................ 284 8.5 Interim Conclusion..... 287 9 Conclusion... 291 9.1 Research Summary................................. 291 9.2 Research Findings...... 293 9.3 Final Comments and Recommendations for Further Research...... 296 Bibliography... 299

List of Figures Fig. 2.1 Fig. 3.1 Fig. 8.1 Fig. 8.2 Fig. 8.3 Fig. 8.4 Fig. 8.5 Fig. 8.6 Percentages of adults who ordered and bought goods and services on the internet by countries for the period from 2004 to 2008... 18 The components of justice in relation to the contemporary concept of access to justice... 49 Relationship established directly between two actors without involvement of an intermediary... 258 Relationship between two actors with the involvement of an intermediary... 258 Relationship established directly between traders and consumers in the market without the involvement of an intermediary... 259 Relationship between various actors in the market with an involvement of an intermediary... 259 Relationships between various actors in the market with states as intermediaries in facilitating connections and trust in the online environment within a particular jurisdiction without any global network... 268 Relationships between various actors in the transnational consumer market with states as intermediaries in facilitating connections and trust concerning private ordering in the distant or transnational online environment through global networks or partnerships... 269 xiii

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List of Tables Table 3.1 Table 4.1 Table 7.1 Table 8.1 Table 8.2 Table 8.3 Table 8.4 Historical development of the concept of access to justice and its relationship with the movement for consumers access to justice... 63 The conditions necessary to satisfy the multidimensional aspects of access to justice in B2C e-transaction... 67 Private ordering, its potentials and limitations from access to justice... 252 Reasons for the use of intermediaries in facilitating private ordering in B2C e-transactions... 261 State is the most suitable institution to serve as the intermediary in facilitating private ordering by affording the advantages of private ordering while correcting market failures in order to deliver multidimensional access to justice to consumers... 265 Reasons justifying incentives for the state to act as the intermediary in facilitating private ordering in B2C e-transactions... 271 State as the intermediary in facilitating private ordering whilst correcting the systems advantages and the failure of markets to deliver multidimensional access to justice to consumers in B2C e-transactions... 285 xv