cross-border internet dispute resolution in .NET Encoder Code128 in .NET cross-border internet dispute resolution

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cross-border internet dispute resolution use none none creation toencode none in none Planet 3.6 De nition of relevant disputes in respect of the parties As has alr eady been pointed out in 2,34 this book suggests that the presence of power imbalances cannot be assessed on a case-by-case basis. Therefore it is necessary to develop general categories, linked to the status of the disputants, that are presumptive of the presence of a power imbalance. The closest existing legal paradigm to the issues examined here is that of consumer-protection laws.

If one party satis es the legal de nition of the status consumer , and the other party satis es the legal de nition of the status business , there is a legal presumption that a power imbalance exists, and hence consumer-protection law applies as a mandatory form of law. As a consequence, special rules protecting consumers apply in certain de ned B2C relationships. In this section the de nition of consumer under different laws will be examined, and it will be argued that this de nition needs widening for the purposes of this book on Internet dispute resolution.

. 3.6.1 Meaning of consumer under different laws and regulations Under Engl ish law, the de nition of what amounts to a B2C relationship varies between different pieces of legislation in a piecemeal fashion. From summarising the thrust of these different pieces of legislation, essentially two components35 can be distinguished: (i) Generally speaking, the consumer must be an individual who does not act in a business capacity.36 Some legislation, however, includes unincorporated business entities (such as a sole trader or a partnership) in the de nition of a consumer,37 and there is case law38 suggesting.

34 35. 37 38. See 2.5. S none for none ome legislation merely requires that the goods or services supplied must be intended for private, non-business use, i.

e. a company can be a consumer under this de nition: Unfair Contract Terms Act 1977, s. 12(1)(c); this is not required if the consumer is an individual: s.

12(1A). Unfair Contract Terms Act 1977, s. 12(1)(a); Directive 93/13/EEC on Unfair Terms in Consumer Contracts, Art.

2(b); E-commerce Directive 2000/31/EC, Art. 2(e); Distance Selling Directive 1997/7/EC, Art. 2(2) and Jurisdiction Regulation EC/44/2001, Art.

15(1). An example is s. 189 of the Consumer Credit Act 1974: the term individual includes an unincorporated body, such as a partnership.

R&B Customs Brokers Co Ltd v. United Dominions Trust Ltd [1988] 1 WLR 321 (CA), 330..

internet disputes that even none none a company can act as a consumer under the Unfair Contract Terms Act 1977.39 (ii) Conversely, the supplier must act in a business capacity.40 It seems that for the purposes of civil liability, this criterion is interpreted widely.

There is no need for the transaction to be an integral part of the business, in the sense that the business trades in the type of goods or services sold. Hence a sherman selling his boat was acting in the course of business.41 Generally speaking, there are no limitations to the size of the entity of the supplier, and the de nition of the business party includes natural persons (such as sole traders and traditional partnerships) as well as incorporated entities such as companies.

The traditional B2C paradigm just described can be criticised on three grounds. The rst criticism is that it is problematic to subject all businesses, regardless of their size and operation, to the same types of consumerprotection rules. However, this criticism is probably slightly less important in the context of fairness of dispute resolution mechanisms, and.

40 41. This is cl none none ear from s. 12(1)(a) of the Unfair Contract Terms Act 1977, but if the party is not an individual, then, according to s. 12(1)(c), the goods must be of a type ordinarily supplied for private use and consumption.

An example of this would be a company buying drinks or a car for their employees private use. Also, s. 90 of the English Arbitration Act 1996 includes companies not acting in a business capacity when protecting consumers against unfair arbitration clauses; see the discussion at 7.

2.2. By contrast, European legislation makes clear that a consumer must be a natural person acting for purposes that are outside his or her trade, business or profession: see Directive 93/13/EEC on Unfair Terms in Consumer Contracts, Art.

2(b); E-commerce Directive 2000/31/EC, Art. 2(e); Distance Selling Directive 1997/7/EC, Art. 2(2); Art.

15(1) of the Jurisdiction Regulation EC/44/2001 only refers to persons , not natural persons; however, the ECJ has made clear that only natural persons are protected by the consumer provisions in the Jurisdiction Regulation: see Case C-150/77, Bertrand v. Ott [1978] 1431 (ECJ), para. 22 and also Case C-269/95, Benincasa v.

Dentalkit [1997] ECR I-3767 (ECJ), para. 17. Similarly, the ECJ has also found that the notion of consumers does not extend to legal persons in the context of Directive 93/13/EC: Joined Cases C-451 and 452/99, Cape SNC v.

Idealservice SRL [2003] 1 CMLR 42 (ECJ), para. R1. The tendency is that under EU legislation, the notion of consumers has a narrower meaning: see, for example, the case of C-464/01, Johann Gruber v.

Bay Wa AG, OJ C57/1 of 5 March 2005. In that case, the ECJ found that in the context of the Brussels Convention, where the contract is for goods partly intended for private and partly for trade purposes, the consumer provisions only apply if the trade purpose is so limited as to be negligible. Contrast this with the case of R&B Customs Brokers Co Ltd v.

United Dominions Trust Ltd, 330, in which the court said that in the case of mixed use, the business use only prevails if there is a high degree of regularity of the business use. For example, s. 12(1)(b) of the Unfair Contract Terms Act 1977.

Stevenson v. Rogers [1999] 2 WLR 1064 (CA), 1039 42, but cf. ECJ jurisprudence.

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