The following is an excerpt from a report by Professor Michelle Kelly-Louw, President of the International Association of Consumer Law.
The International Association of Consumer Law’s (IACL’s) 16th conference, entitled “Economic Development and Consumer Law” was held at the Faculty of Law of the Federal University of Rio Grande do Sul in 2017.
One of the topics of this conference was tourism and travel. During the conference, members of the IACL expressed their interest in increasing research in this important area of cross-border consumer contracting.
During March 2018, the Hague Conference on Private International Law discussed a proposal by the Brazilian delegation to start a project on a possible future Convention on Co-operation and Access to Justice for International Tourists (“Tourism Project”). Some of the problems that were identified by the Brazilian delegation are:
• Information gap: Tourists often seem unaware of their rights and legal remedies. There is a lack of express and systematic dissemination of relevant information and assistance. Even pro-active tourists may find it difficult to identify information. This information gap may lead to a denial of justice in practice.
• Inability to use mediation/conciliation beyond the stay in the visited country: Mediation/conciliation is generally regarded as the most appropriate/proportionate method to resolve small claims (arguably a major proportion of tourists’ claims). This method seems often available in theory, however may be unavailable in practice for two main reasons. First, physical presence is required by law, and the use of distance communication tools to substitute physical presence is impossible, leading to an unavailability, or discontinuance, of mediation/conciliation, especially where the stay in the visited country is of insufficient length, or where a return, while available, would not be reasonable. Secondly, even where distance communication tools are available, other limitations such as language barriers may hamper appropriate resolution of the claim.
• A persistence of obstacles to access to justice in cross-border matters, in particular the cautio judicatum solvi (the requirement for a foreign national to pay a sum of money in advance to cover the costs of the proceedings in case these would be lost by that person).
• Inability to initiate court proceedings beyond the stay in the visited country: Court proceedings may not be available in cases where physical presence is required. Requiring physical presence has a disproportionate impact on tourists, and especially short-stay tourists. Difficulties are compounded notably by the information gap and language barriers.
• Impossibility to continue court proceedings beyond the stay in the visited country: Even if a tourist can initiate proceedings during the stay in the visited country, the potential length of judicial proceedings may prove prohibitive to gain appropriate access to justice. The issue is compounded in situations where proceedings are discontinued in the absence of physical presence at the hearing and exacerbated where proceedings last longer than a stay permitted by visa conditions, in which case delay can be used strategically.
• Unavailability of a small claim procedure tailored for cross-border cases: Tailored small claims procedures appear particularly desirable in tourism related disputes, which are normally akin to typical consumer claims, in that they are of small value and of little complexity.
• Absence of governmentally funded authorities in charge of helping tourists to access justice: Most States do not have dedicated governmental agencies or bodies charged with assisting tourists to access justice, although some consumer agencies take on a comparable role. However, even where such bodies exist, they are often ill-equipped to assist appropriately, especially in light of time pressures and language barriers.
• Absence of appropriate liaison mechanisms between authorities of the visited country and the country of the tourist: Where tourists seek to complain to a (consumer) body after their return, these bodies regularly have practical difficulties in liaising with the trader, whether in relation to the facts, or even to commence mediation/conciliation. Moreover, the complex enforcement of any settlement reached would prove a significant deterrent.
According to the Brazilian delegation, there is currently no coherent regime that provides appropriate access to justice and that an international instrument designed to overcome the many current shortcomings in protecting tourists is desirable. The proposal was supported by many countries but received critically by others. Since the financial underpinning of the proposal was received only the day of the meeting, the Hague Conference decided to stay any decision until the conference meeting of 2019. The IACL supports the Hague’s Tourism Project and the suggestion to form a Working Group dealing with relevant aspects.