Consumer Arbitration Research Articles

Cross-Border Enforcement of Consumer Banking Law

This literature review examines the ongoing challenges and advancements in consumer protection within international finance and arbitration. It highlights regulatory failures, particularly in the context of high-profile financial scandals, underscoring the necessity for more robust financial regulations. The review discusses the issues of cross-jurisdictional consumer protection, focusing on the implications of regulatory arbitrage and its detrimental effects on consumer rights in global contexts. Additionally, it addresses the role of online dispute resolution as a means to reduce barriers to justice in cross-border financial transactions. The importance of fairness and efficiency in consumer arbitration processes is emphasized, particularly in relation to emerging digital finance models. The review also explores the critical issues of transparency and potential bias in international financial dispute resolution. Furthermore, it underscores the urgent need for reforms in international commercial law to effectively protect consumers amid the complexities of globalization and evolving financial landscapes. This compilation of insights presents a comprehensive understanding of consumer protection in cross-border financial environments, illustrating the necessity for improved regulatory frameworks and dispute resolution mechanisms to safeguard consumer rights effectively.

ALTERNATIVE DISPUTE RESOLUTION ON CONSUMER CONFLICTS IN THE EU AND TURKEY

Consumer conflicts arise every day and how to handle this issue is a major part of ensuring consumer redress mechanisms. Because of the workload of courts and the length of cases, Alternative Dispute Resolution (ADR) on consumer conflicts began to occur in the 1970s. The European Union (EU) has always been a supporter of ADR and regulated a specifically Directive with its principles to bring a minimum harmonization duty for member states to ensure a single market. However, because of the general nature of the articles, there have been lots of different approaches and methods in the member states. And, it has become imprecise to understand if it is a good role or effective because of the ambiguous provisions and a variety of approaches. Turkish Law on Consumer Protection entered into force in 2014 to assure harmonization duty of EU acquis, and it regulated the sui generis procedure of Consumer Arbitration Committees (CAC) and then compulsory mediation on consumer conflicts with an added article in 2020. This article argues that CAC is harmonized with the EU acquis and ADR systems in Turkey bring more effective consumer redress mechanism due to cultural and economic reasons for now even if it is not perfect and has to be improved.

The Response: Divergent Approaches to Mass Arbitration, and the Effect on Practice in State and Federal Courts

Mass arbitration has emerged following efforts by corporate employers to safeguard the enforceability of their employment and consumer arbitration provisions, and plaintiffs’ moves to pursue individual arbitration remedies in the face of court‐backed mandatory employment arbitration programs that prohibit court cases.

French Wine in New Bottles: Revirement de Jurisprudence in French Consumer Arbitration Law

French Wine in New Bottles: Revirement de Jurisprudence in French Consumer Arbitration Law

The definitive impetus for access to justice: Mandatory consumer arbitration in Spain

The purpose of the following paper is to address the relevance of consumer arbitration as an effective procedural justice mechanism within the EU internal market. Thus, the article focuses on the possibility of introducing a mandatory consumer arbitration system in Spain that allows consumers to exercise their rights recognized by the rules in a fast, efficient and free way. For this purpose, the Portuguese consumer arbitration system and its evolution up to the establishment of a mandatory arbitration procedure for consumer disputes below a certain amount is also analysed.

Fairer, Faster, Better III: An Empirical Assessment of Consumer and Employment Arbitration

Fairer, Faster, Better III: An Empirical Assessment of Consumer and Employment Arbitration

PROCEDURE FOR RESOLVING CONSUMER DISPUTES THROUGH CONSUMER DISPUTE SETTLEMENT AGENCY (BPSK)

The establishment of the Consumer Dispute Settlement Agency (here and after, we will use the acronym BPSK) is to protect consumers and entrepreneurs by designing a Consumer Protection system that contains legal certainty and transparency. The purpose of this study was to determine the procedure for resolving consumer disputes through BPSK. This research uses doctrinal and non-doctrinal approaches. The result of the research is that the procedure for resolving consumer disputes carried out by BPSK is through 2 (two) processes or paths that must be passed if consumers want to resolve consumer disputes with business actors, namely: Dispute Resolution outside the court, namely the process of making a complaint or claim for losses carried out by business actors to BPSK or Non-Governmental Consumer Protection Agency (LPKSM). From these complaints, BPSK is obliged to issue a decision no later than 21 (twenty-one) working days after the claim is received and Dispute Settlement Through the court, namely the process Consumers who feel aggrieved report to the authorities, namely to the police for follow-up as in the dispute resolution process in court. There are 3 (three) ways to settle consumer disputes, namely conciliation, arbitration, and mediation.

Mandatory Arbitration and Prison Services Contracts: How Private Companies Exploit the Incarcerated and Consumers to Reject Meaningful Accountability

This Comment considers a previously unexamined, and particularly vile, consequence of the movement towards consumer arbitration clauses: their impact on incarcerated people and their families. Incarceration is physically, emotionally, and financially ruinous for both the incarcerated and for families who are routinely forced to subsidize their loved one’s incarceration through paying for things like phone calls and basic needs that prisons fail to meet. The burden on families has only increased as governments have contracted various aspects of correctional systems out to private companies that charge exorbitant prices for basic services, knowing full well that consumers have no choice but to comply if they want to provide for and stay connected to incarcerated loved ones. This system would be inhumane enough without the added element of forced arbitration. This Comment hopes to shine a light on how mandatory arbitration clauses make an already exploitative situation all the worse. Not only are families of the incarcerated charged outrageous and illegal prices to communicate with and protect their loved ones, but mandatory arbitration ensures that they have no real ability to hold responsible companies accountable.

Uniformity and Diversity in the Enforcement of Arbitration Clauses in Canada

Arbitration is well established in Canada. All jurisdictions have implemented the 1958 New York Convention, the UNCITRAL Model Law on Arbitration and equivalent legislation for domestic arbitration. This generally supportive legal landscape for arbitration is often at odds with access to justice for consumers. As a result, several jurisdictions in Canada have adopted legislation to guarantee consumers’ access to local courts, including through class actions, notwithstanding the inclusion of arbitration clauses in their contracts. The constitutional division of powers in Canada entitles each province to adopt its own policy, leading to diversity across the country with regard to the enforceability of arbitration clauses in consumer contracts. In this paper, the author examines the tension between general support for arbitration and differentiated treatment of consumer arbitration in Canada. To that end, the author examines relevant legislation in several provinces (including Quebec and Ontario) as well as recent jurisprudence from the Supreme Court of Canada (Dell Computer (2007), Telus (2011) and Wellman (2019)). The 2020 decision from the Supreme Court of Canada in Uber may signal a new openness toward extending protection to other vulnerable contracting parties such as employees.

AN ALTERNATIVE WAY OF RESOLVING DISPUTE WITH CONSUMER PARTICIPATION: EXPERIENCE FOR UKRAINE

Background. The Government-endorsed Concept of State Policy for Consumer Protection by 2020 recognizes the need to reform a consumer protection system that has lost its control and is not acting in the interests of the multi-million consumer community. Governments are being chaned, but no one is paying attention to this problem, which exacerbates the situation in the country and leads to more active actions and consumer demands: there are no constitutional guarantees for state protection of legitimate consumer rights; there is no effective state body for consumer protection, independent from industrial interests; there is no national system for handling consumer complaints and compensation for violations of rights and illegal actions, resulting in consumers of Ukraine being unprotected and virtually disenfranchised against the dishonest actions of certain authorities and economic entities. Analysis of recent researches and publications. The legal problems of the consumer protection system were investigated. However, their works did not propose specific mechanisms for introducing alternative ways of resolving consumer disputes. The aim. Legal analysis of the grounds for introducing alternative ways of resolving consumer-related disputes, based on an analysis of best European practices. Materials and methods. General and specific research methods were used to elaborate on the topic outlined. Results. The state function of «consumer protection», enshrined in the Constitution of Ukraine and fundamental international and European consumer protection instruments ratified in Ukraine, has become declarative and, as a consequence, consumers are deprived of an accessible, effective and impartial mechanism for protecting their rights. The state should provide, in addition to the generally accepted (state) mechanisms of protection, also alternative ways for fair, urgent, unreated to significant costs -settling disputes and obtaining consumer legal protection. Europe-wide practice demonstrates effective approaches to alternative ways of resolving consumer policy disputes. In view of the current situation regarding inefficient state mechanisms for consumer protection in Ukraine, the German experience of alternative ways of resolving consumer disputes is analyzed, as exemplified by Schlichtunqgsstelle fur den öffentlichen Personen verkehre.V. (Söp), which is an Independent Consumer arbitration Comission. Here we have analysed Söp’s work on the out-of-court settlement of individual disputes between travelers as consumers and companies in the transport and tourism sectors which can show us the great mechanisms of solving above-mentioned problems. Conclusion. In Ukraine, one of the most effective and promising areas in the field of consumer protection should be the introduction (normalization) of a system of alternative ways of resolving consumer disputes. We are convinced that our state should offer the option of choosing the consumer’s remedy, and provide a mechanism for resolving disputes through alternative means that will allow parties to avoid state litigation (going to court is preferable to use as an exclusive way of settling a legal dispute).

Adalet Yönetiminde Dönüşüm

Türkiye'de, 1980 darbesi ile başlayan, devletin yenisağ/ neo-liberal dönüşümünün adalet yönetimine yansıması 2002 yılı sonrasına denk gelmektedir. Adalet yönetiminde mevcut dönüşüm, adalet hizmetlerinde verimlilik, etkinlik ve etkililik sağlama gayeleri çerçevesinde olmuştur. Çalışma, uluslararası alanda 20. yüzyılın sonunda ortaya çıkmış olan yargıda verimlilik kavramı bağlamında Türkiye adalet yönetiminde 2002 sonrasında başlayan dönüşümü analiz etmektedir. Bu makale adalet yönetiminin kamu yönetimi disiplini içinde bir çalışma alanı olduğu varsayımından hareketle, adalet yönetimindeki dönüşümün yeni-sağ ile başlayan sürecin bir parçası olduğunu ileri sürmektedir. Bu politikaları teknikleştiren ve transfer eden aktörler ise uluslararası örgütlerdir. Bu çerçevede, Avrupa Birliği, Avrupa Konseyi ve Dünya Bankası gibi uluslararası örgütlerin, adalet sisteminin dönüşümü üzerindeki etkilerini sorgulamaktadır. Sorgulama, tüketici hakem heyetlerinin yargısal verimliliğe etkisi ve önemi çerçevesinde yapılmaktadır.

Collective Preclusion and Inaccessible Arbitration: Data, Non-Disclosure, and Public Knowledge

When courts enforce mandates to arbitrate, jurists describe themselves as respecting the individuals’ autonomy to enter into contracts that route claimants to a process that is more user-friendly than adjudication. But those rationales are disjunctive with the practices of providers of goods and services and of employers. These companies neither offer individuals choices about dispute resolution mechanisms nor welcome the exchange of information about experiences with arbitration. Instead, companies impose obligations to arbitrate and set the terms. In addition to the increasingly commonplace bans on joint and collective actions in any forum, many providers and employers also seek to mandate a cone of silence by instructing individuals not to disclose the content of claims, the use of arbitration, or the outcomes. But as we document in this Article, during the last decade, very few individuals filed claims, single-file, in arbitration. Given the success in precluding class actions and the rarity of filings, why are market actors seeking to silence the few who do arbitrate? And are such mandates enforceable by courts? In this Article, we interrupt these silencing provisions through disseminating information about the rules of and use of arbitration. We track efforts to limit information about arbitration, outline the growing body of law on non-disclosure, and analyze the data about consumer use of arbitration. As we recount, some jurists have held non-disclosure obligations unenforceable. Yet many decisions condone their imposition despite the repeat-player advantages that accrue to the clauses’ drafters, who have access to information that one-shot participants do not have. In addition to information about efforts to silence litigants that can be gleaned from the case law, we have also mined materials posted by the American Arbitration Association (AAA), which has complied with state statutes requiring administrators of consumer arbitration to make accessible the number of claims filed and the results. The picture that emerges is that, of the millions of people using services and products, virtually none file individual arbitration claims. Because AT&T succeeded in persuading the U.S. Supreme Court to enforce bans on collective action and require claimants to use the AAA, we researched arbitration filings against AT&T. Between 2009 and 2019, when the AT&T wireless services customer base ranged from 85 to 165 million, about 90 individuals a year filed an arbitration claim. The available data also provide insight into why, given that remarkably low level of claims, providers of services seek to silence the few who are arbitration users. Law firms and other aggregators have begun a market in de facto collective actions by bundling similar claims against individual providers. And, outside of courts and arbitration, collective consumer action can seek remedies by putting information into the public realm that can affect purchasing decisions and press for changes in the behavior of service providers and employers. Episodic filings through bundlers, claims pursued by government regulators when focused on consumer protection, and networking through web posts are important avenues. But the current legal landscape does not provide systematic access for consumers who have been harmed but lack knowledge of their injuries or connections to aggregators. The privatization of process and non-disclosure mandates prevent similarly-situated individuals from learning about the potential to obtain redress and from sharing lawyers. Moreover, the development of law through cases or statutes and public debates about rights and remedies are stymied by information deficits. In short, after decades of conflicts often termed “class action wars,” we are now in the “information wars,” replete with energetic efforts to mandate silence that, we argue, law should rebuff.

THE BANKS ASSOCIATION OF TURKEY CUSTOMER COMPLAINTS ARBITRATION PANEL

5411 sayılı Bankacılık Kanunu’nun 80’inci maddesinin j bendine dayanılarak, Türkiye Bankalar Birliği nezdinde Bireysel Müşteri Hakem Heyeti kurulmuştur. Bireysel Müşteri Hakem Heyetinin amacı, Türkiye Bankalar Birliği üyeleri ile bireysel müşteriler arasındaki uyuşmazlıkların değerlendirilmesi ve çözüme kavuşturulmasını temin etmektir. Tüketici Hakem Heyetine, Sigorta Tahkim Komisyonuna veya yargıya intikal etmiş olan uyuşmazlıklarla ilgili Bireysel Müşteri Hakem Heyeti inceleme yapamaz. Ayrıca bireysel nitelik taşımayan ticarî, ziraî ve benzeri faaliyet konularıyla ilgili bankacılık işlemlerinden kaynaklananlar ile tüzel kişiler tarafından yapılan başvurular da Bireysel Müşteri Hakem Heyetince incelenemez. Bireysel Müşteri Hakem Heyetinin kararları bağlayıcı olmadığından, uyuşmazlık hakkında yargı yoluna başvurulabilir. Ancak Bireysel Müşteri Hakem Heyetinin tutarı işlem başına 2019 yılı için 3.692 TL’ye kadar olan uyuşmazlıklarla ilgili kararları yargı yolu açık olmak üzere bankalar tarafından uygulanmak zorundadır. Bireysel Müşteri Hakem Heyetinin hukukî niteliği, bir çeşit alternatif uyuşmazlık çözüm yöntemidir. Bu sayede yargının iş yükünün azaltılması ile uyuşmazlıkların daha az masraf ve emekle daha hızlı çözüme kavuşturulması amaçlanmaktadır.

Empirically Investigating the Source of the Repeat Player Effect in Consumer Arbitration

Policymakers, courts, and scholars have long been interested in whether repeat players enjoy an advantage in forced arbitration. Sophisticated empirical studies of consumer and employment awards reveal that there is indeed a repeat player effect: even controlling for other factors, companies that arbitrate more than once boast higher win rates than one-shot firms. However, researchers have not yet tried to determine whether this repeat player effect is a product of experience within the arbitral forum (the “experience” hypothesis) or characteristics of the repeat playing companies themselves (the “defendant-specific” hypothesis). This Article begins to address this issue by analyzing 4,570 consumer arbitration awards from the American Arbitration Association. Using a unique regression specification that includes both discrete and continuous random variables (a combination of functional forms not used in previous literature), it finds that the repeat player effect is more consistent with the defendant-specific hypothesis than it is with the experience hypothesis. Indeed, to the extent that repeat-playing businesses enjoy an advantage in arbitration, it likely emanates from company-specific characteristics.

Developments in Labor and Employment Law in the United States (January 2019 - August 2019)

I - United States Supreme Court Supreme Court precedent has established the enforceability of consumer arbitration agreements and mandatory employment arbitration agreements in non-union workplaces. Such arbitration agreements often require consumers or employees to waive their rights to litigate claims or to bring class action arbitrations. In Lamps Plus v. Varela, the Supreme Court extended this line of precedents, holding in a 5-4 decision that an employment arbitration agreement that was ...

The Spanish and Portuguese Systems: Two Examples Calling for a Further Reform – Uncovering the Architecture Underlying the New Consumer ADR/ODR European Framework

The article scrutinizes the European Framework for consumer ADR and ODR with the purpose of uncovering how Europe aims to develop ADR and ODR in EU MS in order to deliver justice and ensure a better enforcement of EU consumer protection rules and a better functioning of the markets. It deepens on the transformations in the ADR systems required to better fulfil the new functions assumed by the certified ADR entities and the role that the technology may play inside efficient certified consumer ADR entities. The domestic implementation of EU law in Spain and Portugal rather seems to perpetuate the pre-existing systems although wrapped up in European packaging with a ribbon on top. The exam reveals the existence of a further path for improvement and for obtaining additional advantages that could lead to a better functioning of the markets and a more suitable encompass with the philosophy that underlies the EU Regulatory Framework. The article explores different ways to move forward and achieve a higher degree of compliance with the ADR/ODR Regulatory Framework. ADR, ODR, Consumer Redress, European Regulatory Framework, Consumer Arbitration System, Spanish Law, Portuguese Law.

Embodiment Principles of Clearing Justice in Consumer Arbitration

The realization of the principle of justice in proving the settlement of consumer disputes through arbitration in Indonesia is equally important. Undeniable, there is a weakness of the consumer protection law, both substantial norms and formal law. This article is normative legal research that refers to norms and legal principles in the legislation or court decisions. The results show that the proof is one of the trials that plays an important role. In general, the verification system is distinguished based on civil law and common law understandings influenced by various proof system theories such as the presumption of liability principle adopted in the Indonesian consumer protection law. The principle of justice in the consumer arbitration system is different from the arbitration verification system that is universally applicable in Indonesia. The ultimate goal of choosing consumer arbitration is to get substantial justice that is more dignified and not just obtaining formal justice.

Consumer Arbitration and Subtle Variances in its Effectiveness in Selected EU Member States (Czech Republic, Slovakia, Austria, Germany)

Thorough legal regulation of arbitration involving consumers is significant for their protection, which is provided in the EU by the restrictive model, embedded in Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts. It is submitted that EU Member States’ legislative reaction to achieve compatibility of their national laws with Directive 93/13 EEC was not identical and led to a debate on the effectiveness of consumer arbitration in the EU. The following article is an attempt to inform this debate. It provides a compact analysis of consumer arbitration agreements and discusses relevant arbitration law and practice in the Czech Republic, Slovakia, Austria and Germany – four EU Member States and also neighbors with intertwined mutual relationships. The thesis of this article is that even the most consumer-friendly legislation does not secure the success of consumer arbitration in all arbitrated cases. Equally, strongly pro-consumer legislation does not always mean arbitration-friendly legislation when legislative assimilation of litigation with arbitration is not avoided – indeed, quite the opposite.

소비자 중재합의의 유효성 - 미국판례를 중심으로

소비자 중재합의의 유효성 - 미국판례를 중심으로

Arbitration with Uninformed Consumers

We examine whether firms have an informational advantage in selecting arbitrators in consumer arbitration, and the impact of the arbitrator selection process on outcomes. We collect a novel data set containing roughly 9,000 arbitration cases in securities arbitration. Securities disputes present a good laboratory: the selection mechanism is similar to other major arbitration forums; arbitration is mandatory for all disputes, eliminating selection concerns; and the parties choose arbitrators from a randomly generated list. We first document that some arbitrators are systematically industry friendly while others are consumer friendly. Firms appear to utilize this information in the arbitrator selection process. Despite a randomly generated list of potential arbitrators, industry-friendly arbitrators are forty percent more likely to be selected than their consumer friendly counterparts. Better informed firms and consumers choose more favorable arbitrators. We develop and calibrate a model of arbitrator selection in which, like the current process, both the informed firms and uninformed consumers have control over the selection process. Arbitrators compete against each other for the attention of claimants and respondents. The model allows us to interpret our empirical facts in equilibrium and to quantify the effects of changes to the current arbitrator selection process on consumer outcomes. Competition between arbitrators exacerbates the informational advantage of firms in equilibrium resulting in all arbitrators slanting towards being industry friendly. Evidence suggests that limiting the respondent’s and claimant’s inputs over the arbitrator selection process could significantly improve outcomes for consumers.