Today, the UNCTAD working group on e-commerce including sub-group 3 met to prepare for the IGE. Professor Riefa presented the findings of her report prepared for this project and thanks to the assistance of all our collaborators and contributors (full list below).
The highlights of the report are below. It will shortly be published in full and accessible to all through our website.
The United Nations Guidelines for Consumer Protection from 2016 (UNGCP) emphasise the benefits of international cooperation laying out a number of principles to facilitate cross-border cooperation. However, too often, enforcers and consumers find it difficult to take action across borders. This report investigates the reasons behind those difficulties and seeks to make recommendations to facilitate and improve the international enforcement of consumer law.
The report distinguishes between substantive and procedural consumer law, noting that the development of the infrastructures and powers necessary to enforce substantive rights is lagging behind when compared with substantive consumer law that has greatly expanded in recent years. With the expansion of electronic commerce, enforcement frameworks developed in the analogue era are no longer sufficient. They are ill-placed to cater for the legitimatisation of unfair practices online, a change in market structures and business models (notably based on mass collection of data), resource asymmetry and the quasi-anonymity of market participants. Enforcement frameworks, where they exist, need modernisation, transcending the geographical borders along which they were built. The report takes stock of the current obstacles to cross-border enforcement which include:
- Diversity in both substantive and procedural consumer laws
- Diversity in systems of governance
- Limitations of private enforcement
- Obstacles to public enforcement across-borders
- Some characteristics of digital markets.
In the absence of any binding international instrument that could cut through those difficulties and acknowledging that if such system were to develop it would be the result of a slow procedure, the report investigates a number of solutions already in place to bolster cross-border enforcement. For example, it reflects on how the exercise in regionalisation of substantive and procedural consumer law provides some help in bridging the national with the international. However, the report guards against the impulse of harmonisation and looks instead for a way to ensure that diversity in legal systems and cultures can remain yet be harnessed to protect consumers, identifying coherence as a guide. In addition, the report identifies how pursuing formalised cooperation mechanisms while making use of coordination harnessing existing tools, can provide a short-term solution. In this regard, the report highlights the good results that can be obtained via participation in ICPEN activities, in engaging in MoUs and other bilateral or multi-lateral treaties or contributing to information exchange databases. The report also highlights how the consumer movement has made good use of coordination coming together to fight consumer detriment via collective actions using national procedures.
The report also takes position for two more novel approaches to cross-border enforcement. One is to advocate for a technological approach to enforcement (which has also relevance at national and regional level) and thus explores the merits of the use of technology in enforcement while warning of the pitfalls. The other is to encourage the pursuit of an international standard as a way to go beyond the current initiatives of developing a toolkit and leading the way to the development of a procedural soft law instrument.
The report makes the following recommendations to UNCTAD and more specifically sub-group 3:
- Continue efforts to build up the legal and institutional frameworks (substantive and procedural law) to facilitate cross-border enforcement
- Continue work on the sub-group 3 mapping exercise to find a means to recognise that solutions have to be thought out beyond geographical borders
- Explore the use of enforcement technology (EnfTech) in consumer enforcement and investigate the common development of tech tools for cross-border enforcement
- Use databases to best effect for information sharing and help cross-border enforcement response
- Look at the development of international standards as part of the solution
- Pursue the development of private means of cross-border redress for consumers as part of a mix of mechanisms
- Beware that the best should not be the enemy of the good. Small solutions can yield big results.
Authors and contributors
This report was written by Prof. Riefa with main contributions from:
Elizabeth Coll, Julie Hunter, Robin Simpson, Stephanie Law, Mira Scholten, Lorna Gillies, Serkan Kaya, Catalina Goanta and Laura Aade
On country reports, we are grateful for the contributions from:
Professor Martina Lourdes Rojo (Argentina), Prof Claudia Lima Marques (Brazil), Helena Klinger (Germany), Ms Vassiliki P. Koumpli (Greece), Mateja Durovic (Hong Kong), Mr Giacomo Pailli (Italy), Professor Cristina Poncibò (Italy), Dr Aya Osawa (Japan), Dr Trish O Sillivan (New Zealand), Professor Monika Namyslowska (Poland), Ms Agniszka Jabłonowska (Poland), Professor Sandra Passinhas (Portugal), Professor Camelia Toader (Romania), Professor Petra Wingerl (Slovenia), Professor Jacolien Barnard (South Africa) , Professor Tjakie Naudè (South Africa), Professor Regina Garcimartín Montero (Spain), Professor Evrim Erisir (Turkey), Duygu Damar (Turkey).
This report was written with research assistance from Sho Tanyama and Nadia Musa.
Our thanks to contributors offering oral expertise and/or assistance on aspects of this project:
Elizabeth Gachuri, UNCTAD Secretariat; Andrew Hadley, CMA; Antonino Serra Cambaceres, Consumers International; Alexandre Baird, BEUC; Thibault Schrepel, University of Amsterdam and Stanford University CodeX Centre; Séverine Saintier, University of Exeter; Tim Dodsworth, University of Newcastle; Professor James Devenney, University of Reading; Professor Thierry Bourgoignie, international consultant.
Our thanks to our speakers at our online conference on 17.03.2022 for informing the findings of this report (full details www.crossborderenforcement.com)
This report is an output part of the project on cross-border enforcement of consumer law (www.crossborderenforcement.com) funded by the UKRI Policy Support Fund at the University of Reading. The project team wishes to thank UNCTAD and the CMA for their technical support in developing this project.