Terminological and Conceptual Delimitation of Consumer Disputes with Respect to Arbitration - Part II - B2C Arbitration: Consumer Protection in Arbitration
Alexander Bělohlávek is Founder and Senior Partner of The Bělohlávek Law Offices, Prague. He is a Member of the International Court of Arbitration at the International Chamber of Commerce (ICC) in Paris as well as Member of the ICC Commission on International Arbitration and a Member of the National Committee of the ICC in the Czech Republic. He has acted as arbitrator or counsel in more than 170 international arbitrations and is listed as arbitrator with the international arbitral centers of several economic chambers in Central Europe. He has published numerous books and articles on arbitration and business law.
Originally from B2C Arbitration: Consumer Protection in Arbitration
II. Terminological and Conceptual Delimitation of Consumer Disputes with respect to Arbitration
II.1. Consumer protection laws
11. The word “consumer” is not uniformly defined. A consumer is generally described as a person who is economically active other than in connection with his or her profession. Persons trading with consumers who are doing so in performance of their profession, are designated as “professionals” (businesspeople).
12. The concept of “consumer legislation” has no uniform definition either. It differs with each individual jurisdiction. For the purposes of this publication, consumer legislation shall be interpreted in the broader sense, i.e. as rules (including interpretation in practice and case law) regulating the relationship between consumer and professional.
13. Consumer disputes at the level of the EU (formerly the EC) have already been briefly defined as follows: “The concept of what constitutes a consumer will determine the concept of what constitutes a consumer dispute […].”1This is the reason why “arbitration in consumer matters/disputes” or, if you wish, “consumer arbitration” has no uniform definition. This book focuses, inter alia, on the analysis of the fundamental hypotheses of consumer legislation and its juncture with arbitration. Consequently, arbitration in consumer matters will in most cases include any arbitration (for an attempted definition see below) between a consumer and a person other than a consumer (business-to consumer arbitration). In those jurisdictions studied herein, arbitration between two consumers (consumer-to-consumer arbitration) is specifically excluded from the scope of consumer legislation. These proceedings would be conducted between two natural persons and as such would be governed by the applicable rules incorporated in the given legal system. Specific sources of consumer protection laws (specific provisions), whether national or supranational (especially EU laws), will be analyzed later in the following parts of this publication.
II. Terminological and Conceptual Delimitation of Consumer
Disputes with respect to Arbitration
II.1. Consumer protection laws
II.2. Arbitration
II.3. Public policy and public interest
II.3.1. Inconsistent application of two materially different categories
II.3.2. Public policy (ordre public)
(a) Domestic and international public policy (ordre public) in legal cultures
(b) Public policy in arbitration
II.3.3. Public interest
(a) National basis for the historical delimitation of public interest
(b) Genesis and the constitution of public interest
(c) Delimitation of public interest
II.3.4. Public policy and public interest in EU law
(a) Autonomous interpretation of public policy and public interest; An exception to the freedoms guaranteed by primary EU law
(b) Free movement of persons and protection of security
(c) Access to information
(d) Consumer protection
II.3.5 Public interest, overriding mandatory rules and comparison with public policy
II.4. Issues common to consumer protection and Arbitration
II.5. Scope of consumer protection issues
II.5.1. Weaker contracting party and the average consumer
II.5.2. Claims made in consumer disputes
II.5.3. Consumer contract
(a) Consumer contract (contract concluded by a consumer)
(b) Consumer and professional
(c) The average consumer (connection with the essential and other terms of the contract and with arbitration agreements)
(d) Multilateral criteria defining a consumer contract
II.6. Resolution of consumer issues
II.7. Consumer arbitration
II.8. Right to legal protection versus right to judicial protection and the importance of autonomy
II.9. Role of courts with respect to consumer arbitration
II.9.1. Appeals (review)
II.9.2. Court intervention at the stage of enforcement of arbitral awards
II.9.3. Control and support exercised by the courts