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Loi applicable et juge compétent : la CCI ne veut pas d’exception pour le consommateur

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La Chambre de commerce internationale (CCI), refuse que la loi introduise une exception permettant au consommateur d’assigner chez lui, en appliquant sa loi, en cas de litige avec un cybervendeur. Le débat est classique : un français va-t-il sérieusement assigner Amazon aux USA, en appliquant la loi américaine, si le livre qu’il a commandé n’a…

La Chambre de commerce internationale (CCI), refuse que la loi introduise une exception permettant au consommateur d’assigner chez lui, en appliquant sa loi, en cas de litige avec un cybervendeur.

Le débat est classique : un français va-t-il sérieusement assigner Amazon aux USA, en appliquant la loi américaine, si le livre qu’il a commandé n’a pas été livré ou si sa carte de crédit a été débitée d’un montant inexact ? Sachant qu’il lui en coûtera environ 1.000 fois le pris du livre, on peut douter qu’il se lance dans l’aventure.

C’est pour cette raison que la Commission européenne, et les experts qui se penchent sur la réforme de la Convention de La Haye, proposent que pour l’e-commerce, le consommateur puisse assigner devant le juge de son domicile, en faisant application de sa loi nationale. Ce serai une sorte de dérogation à la règle de base du domicile du défendeur.

Cette approche est évidemment combattue par l’industrie en ligne, qui a trouvé un certain appui au sein du Parlement européen.

A présent, c’est la Chambre de commerce internationale (CCI) qui s’oppose énergiquement à cette dérogation. Son dernier communiqué explique sa vision des choses et ses recommandations :

A systematic approach to resolving consumer disputes

For B2C e-commerce to reach its full potential, certainty and confidence is essential for both business and consumers when disputes arise between them on-line. Therefore, business seeks a predictable and stable framework for resolving these disputes. Such a framework should allow business to calculate cost, risk, competition, and prices. It should also guarantee that consumers have an easy and cost effective means of resolving disputes.

To achieve both of these objectives, ICC proposes a three-step process to the resolution of B2C disputes resulting from online transactions:

  1. When a consumer complaint arises, parties should first make reasonable attempts to utilize a company’s internal mechanism, such as its customer satisfaction service;

  2. If the complaint remains unresolved, parties should utilize an online alternative dispute resolution — a cost-effective solution that can bridge both geographic and cultural barriers (Please see ICC strategy paper on online ADR for more detailed views of ICC on this issue); and

  3. If the complaint still remains unresolved, the parties can resort to legal action.

ICC believes that the greatest majority of consumer complaints will be resolved either by a company’s internal customer service or similar mechanism, or ADR. However, this does not preclude the need for a predictable legal framework in which to address the few disputes that persist. The remainder of this paper will set forth international business’ views on how choice of law and forum decisions should be resolved in those instances.

Avoid expansive jurisdictional claims

Governments should take care to avoid creating unpredictable grounds for asserting jurisdiction over e-commerce activities. Several examples of expansive jurisdictional claims are :

  • Article 4(1) of the EU Data Protection Directive has been interpreted as requiring foreign website operators who automatically collect information over their websites, but who are not established for business in Europe, to comply routinely with the data privacy rules of each EU country and appoint legal representatives in those countries. This is likely to prove unworkable and unenforceable, and it is inconsistent with jurisdictional doctrines in national law and in private international law.

  • The recently amended EU Brussels Convention in effect subjects any dispute relating to an online contract with a consumer to the jurisdiction of the courts of the consumer’s place of domicile.

  • Certain proposals to amend the EU Rome Convention would apply the laws of the consumer’s residence to an online transaction with a consumer.

  • The Hague Conference on Private International Law’s draft Convention on Jurisdiction and the Enforcement of Foreign Judgements in Civil and Commercial Matters currently adopts the country-of-destination approach to jurisdiction, with very limited exceptions, over sellers who conclude contracts with consumers, thereby subjecting companies to the jurisdiction of the courts of all countries from which its website may be accessed.

These examples threaten to create an inflexible rule of reference to the jurisdiction or laws of the consumer’s residence, regardless of choice or effective alternatives. ICC encourages the relevant governments and administrations to reconsider the policies of the existing or proposed rules set forth in the preceding examples consistent with these recommendations. To that effect, ICC urges the adoption of the following fundamental principles in order to avoid expansive jurisdictional claims.

  1. Party autonomy

    A primary goal of commercial law is to develop legal certainty for transacting parties. ICC supports freedom of contract as a general principle that should drive decisions regarding choice of law and forum. As the basis for all commercial law, contracts embody private agreements between parties, formalizing their intent to be bound by the terms of the contract as if these were the law between them.

    For reasons of compelling public policy, however, in the context of B2C disputes, governments typically place limits or conditions on private agreements in heavily regulated sectors, such as banking and investments. Courts and regulators may also override the terms of private agreements that appear to result from fraud or deceptive practices. ICC encourages governments to keep these limits on the applicability of party autonomy to a minimum. However, where a compelling and well-defined public policy objective dictates such a limitation, ICC urges governments to indicate the circumstances in which they intend to apply local regulations to cross-border e-commerce, and to work toward a common approach to defining fraudulent practices in B2C transactions.

    ICC believes that it is business’s responsibility to provide rules of best practice that will enable contracting parties to make the right choices as to applicable law and competent forum in the domain of legal B2B and B2C transactions. In this context, « transactions » must be understood to encompass transactions conducted between or among legal persons. Regardless of size and other factors, legal persons – as opposed to natural persons – should be subject to the same rules in the same circumstances. This is particularly important in online transactions, where the parties may not know each other and cannot practicably make distinctions as to applicable law based on the size and character of the legal entity with which they are dealing.

  2. Country-of-origin

    Application of the « country-of-origin » principle is a preferable and most workable solution. However, ICC recognizes that there is a subset of consumer transactions in heavily regulated industries where, due to compelling public policy reasons, regulations have been developed to provide that specific redress and information be made available to the consumer in his or her country of residence. As a commitment to consumer protection and empowerment is shared by business and governments, application of the « country-of-origin » principle should not be read to undermine such regulations. Nevertheless, ICC encourages governments to reassess such regulations so as to identify their utility in a global marketplace.

    ICC and the international business community wish to assure consumers and government representatives that where choice, self regulation and country of origin are espoused as the preferable or only workable solution, it is with the conviction that mechanisms proposed must be trustworthy, user-friendly and able to provide effective redress to the consumer. Effective consumer protection cannot be achieved by applying traditional consumer protection concepts. Interactive technology, and in particular the Internet, provides a unique opportunity for creating solutions that are effective and that preserve the flexibility that underpins many of the emerging e-business models. ICC and the business community are committed to engage in an open dialogue with consumers and governments on how these goals can be attained.

    Coordinated and flexible market-based solutions may provide all players with a general set of practices that allow participation in the networked economy while providing reasonable assurances that such participation is not at the expense of appropriate disclosure to and fair treatment of the consumer.

Allow self-regulation to demonstrate its efficacy

Given the complexity of the issues of jurisdiction and applicable law, thorough conceptual review is essential before governments make definitive pronouncements. Premature conclusions that do not address practical realities and the unique circumstances of electronic commerce could create significant obstacles to the continued growth of electronic commerce, and would therefore disadvantage business as well as consumers.

The online medium is particularly conducive to increased consumer empowerment. We believe that increased competition will result in a global « race to the top » as companies develop their online brands in order to ensure consumer confidence. The inherent empowering qualities of the Internet are enhancing the very significant incentive that business has to provide and implement technologies and practices that offer consumers choice through informed decision-making. Informed consumers are good customers. A rule of thumb in the Internet industry is that it costs five times as much to recruit a new customer as to maintain an existing one.

Simultaneously, the private sector should be given adequate time to assess the market and to develop self-regulatory initiatives, including dispute resolution mechanisms, to resolve these problems. Such initiatives are flourishing as was highlighted at the joint ICC, OECD, and Hague Conference on Private International Law conference on B2C ADR held at The Hague in December 2000. These initiatives are taking into consideration the demands of the market and the unique circumstances of electronic commerce. With this notion in mind, and recognizing the need to ensure a minimum level of effectiveness of ADR providers, ICC is currently undertaking devising a mechanism to facilitate effective global online B2C ADR (please see the ICC Strategy Paper on B2C ADR.)

Consumer policies for the online medium have been and continue to be developed and implemented by both business and governments. Self-regulatory solutions provide the flexibility to respond to the dynamic nature of the online environment. Any policies must accommodate and promote this highly dynamic environment, which is a significant engine of economic growth and social development.

Combat fraud and crime on the Internet

Lastly, ICC would like to express business’s continued support and encouragement for enforcement of criminal law against fraudulent and otherwise illegal behavior on the Internet. Business is investing significant resources to assist law enforcement in reducing cybercrime, because it is in the interest of business as well as the consumer to make cyberspace a safe place to shop.

Although non-legitimate businesses on the Internet cannot be effectively « regulated » by self-regulation as such, and will try to evade government regulation, increased consumer empowerment based on easy recognition of brands and trustmarks and the increased availability and use of filtering and rating technologies – coupled with international cooperation within law enforcement and effective cooperation with the private sector – offer practical means of protecting consumers against fraud and crime on the Internet.

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