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(presented by Drs. Carlos
Manuel Vázquez and João
Grandino Rodas)
Recipients of the
questionnaire 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]
[i] Available at
www.uncitral.org/english/texts/electom/ml-elecsig-e.pdf.
[ii] Available at
www.uncitral.org/english/texts/electcom/ml-elecomm.htm.
[iii]Available at http://www.uncitral.org/en-index.htm.
[iv] Commission of the
European Communities, GREEN
PAPER on European Union
Consumer Protection
(2.10.2001).
[v] Consumers International,
“Roads to Consumer
Protection,” available at
http://www.consumersinternational.org/rights99/section1.html
[vi] Id.
[vii] Id.
[viii] Id.
[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\. |
