Current Approaches Towards Harmonization of Consumer Private International Law in the Americas

Penn State International Law Review Volume 27 Number 3 Penn State International Law Review Article 8 5-1-2009 Current Approaches Towards Harmonization of Consumer Private International Law in the Americas Diego P. Fernandez Arroyo Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Fernandez Arroyo, Diego P. (2009) "Current Approaches Towards Harmonization of Consumer Private International Law in the Americas," Penn State International Law Review: Vol. 27: No. 3, Article 8. Available at: http://elibrary.law.psu.edu/psilr/vol27/iss3/8 This Article is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . Current Approaches Towards Harmonization of Consumer Private International Law in the Americas Diego P. Fema'ndez Arroyo* Table of Contents I. IN TRO DU CTION .................................................. 694 II. DIFFERENT INSTRUMENTS (FROM HARD TO SOFT LAW) ........... 695 A. B. Brazilian Draft Convention on the Law Applicable to InternationalConsumer Contractsand Transactions........ 696 CanadianDraft Model Law on Jurisdictionand Choice of L aw ................................................ 698 C. III. IV . V. U.S. Draft Legislative Guidelines (with Three Annexes ProvidingModel Laws and Model Rules) .......................... 699 D. The Nature of the Proposalsand the Issue of Their C om p atibility ..................................................... 703 DIFFERENT ASPECTS OF CONSUMER (PRIVATE INTERNATIONAL) LAW ................................................. 705 A. The Options: From Law Applicable to ADR/ODR ............ 705 B. Need of Choice of Law Rules ........................................ 707 P OLIC IES ............................................................ 70 8 FIN AL REM ARK S ...................................................... 712 * Professor of Law, Complutense University of Madrid (Spain). President of ASADIP (American Association of Private International Law, www.asadip.org). PENN STATE INTERNATIONAL LAW REVIEW I. [Vol. 27:3,4 INTRODUCTION Since 2003, the Organization of American States' ("OAS") has concentrated most of its efforts and focused on the harmonization of international consumer law. It has become the current focal point of the legal harmonization process undertaken by the Inter-American Specialized Conference on Private International Law ("CIDIP").2 As its name indicates, the CIDIP is concerned with conflict issues and therefore with private international law rules understood in a broad sense (i.e. choice of law, jurisdiction, judicial cooperation and international arbitration).3 However, the CIDIP VI, in 2002, has changed this "paradigm" of codification, enlarging the scope of the inter-American unification even more. 4 Thus, the Inter-American Model Law on Secured Transactions deals with both domestic and international relationships, and by consequence most of its provisions are substantive rules. The current state of affairs of the treatment of the subject matter of consumer protection offers a mix of proposals made by Brazil, Canada and the United States ("U.S."), reaffirming the change operated in 2002. Namely, Brazil presented a Draft Convention on the Law Applicable to International Consumer Contracts and Transactions, Canada proposed a Model Law on Jurisdiction and Choice of Law to Consumer Contracts, and the U.S. submitted a Draft of Legislative Guidelines on Availability of Consumer Dispute Resolution and Redress for Consumers. The U.S. Guidelines included three annexes that provide a) a Model Law on Small Claims; b) Model Rules for Cross-border Arbitration; and c) a Model Law on Government Redress.5 1. OAS includes 35 American States from Argentina in the south to Canada in the north; only 34 are effective because Cuba has been suspended since 1962. See http://www.oas.org. 2. See Organization of American States [OAS], Private Int'l Law, available at http://www.oas.org/dil/privateintlaw-interamericanconferences.htm. There is also another issue which is actually the continuation of the main subject-matter of CIDIP VI: security interests. See OAS, CIDIP VI, Washington, D.C., Feb. 4-8, 2002, Final Act, available at http://www.oas.org/dil/CIDIP-VI-finalact-Eng.htm. Current developments in this field address the electronic registry implementation of the Inter-American Model Law on Secured Transactions-an instrument adopted at CIDIP VI. Id. The OAS General Assembly adopted the agenda topics for CIDIP VII. OAS, CIDIP VII, June 6, 2006, Convocation, AG/RES. 2065 (XXXV-0/05), available at http://www.oas.org/ dil/CIDIP-VII_res.2065.htm. 3. See generally GONZALO PARRA-ARANGUREN, CODIFICACI6N DEL DERECHO INTERNACIONAL PRIVADO EN AMtRICA (vol. 1 1982, vol. 11 1998); Didier Opertti Baddn, L'oeuvre de la CIDIP Dans le Contexte du Droit International Priv Actuel, in E PLURIBUS UNUM: LIBER AMICORUM GEORGES A.L. DROZ 269 (1996). 4. See Diego P. Femrindez Arroyo, La CIDIP VI: gCambio de Paradigmaen la Codificaci6n Interamericana del Derecho Internacional Privado?, XXIX CURSO DE DERECHO INTERNACIONAL - 2002, at 465 (2003). 5. Collectively, the "Draft Model Laws." 2009] CURRENT APPROACHES TOWARD HARMONIZATION In the inter-American harmonisation process, as well as in other similar processes undertaken by different international organisations, it is uncommon to be confronted with three different proposals relating to the same topic. What usually happens in other international organisations, as well as in the CIDIP, is a discussion based on one project and its different versions. It is perhaps just a consequence of the characteristics of the CIDIP as a codification body, which functions essentially with the assistance of member states activity, because of the absence of a permanent secretariat specifically dedicated to private international law codification. Regardless, the existence of different available options and various approaches should not be seen as a negative figure; quite the opposite. In addition to the interest of the subject matter itself, current efforts in the Americas give a great opportunity to test the different possible techniques to achieve international legal harmonization within a regional organisation and to analyze the compatibility between them. At the same time, chance is given to observe and compare the different approaches proposed to offer to consumers a way to solve appropriately their crossborder disputes with suppliers.6 This paper will address these issues, as well as with the policies embodied by them. II. DIFFERENT INSTRUMENTS (FROM HARD TO SOFT LAW) Besides its practical relevance to solve real disputes, that the current movement takes place in the Americas within the OAS is interesting from both a theor (...truncated)