Private international law in consumer contracts: a European perspective

Consumer cross-border access to justice has become a hotly debated topic in the contemporary world, especially with the contribution and influence of e-commerce. Although this topic has attracted much attention worldwide, the European Community certainly has played a pioneer role in this area. The European Community is responsible for a number of legislative instruments and other work-in-process to improve consumer redress, which is not limited to the area of improving individual judicial redress but extends to much wider policy tools, including alternative dispute resolution, the European Consumer Centres Network (ECC-Net), the cross-border enforcement network, and the protective injunction. The European development has established a context within which Cross-Border Consumer Contracts, by Professor Jonathan Hill, is written. Presented with Professor Hill’s normal clarity of style, the book is an excellent contribution providing comprehensive, updated and intensive analysis of legal issues in cross border consumer contracts. It is not confined to the area of private international law, but explores the issue in a much broader context. An examination of this subject clearly involves policy, sociological, economic as well as legal environments.

Within the European development in consumer access to justice, protective private international law is most influential. It has been frequently examined by academic writers and legislators in both EU and other countries. The European protective rules represent two characteristics. First, they start from the philosophy that a consumer is in a weaker position relative to a company in a contract, which requires the conflict of laws to take a biased position in favour of the consumer. Although such protection can be found in the domestic legislation of many other countries, it is usually piecemeal, underdeveloped, and applied to a narrow scope of cases. The European contribution is believed to be the first comprehensive and sophisticated conflicts system to apply the protective model to general consumer contracts. Secondly, the European model has also taken the development of e-commerce into consideration and established the protective rules with the specific purpose of being applicable to e-commerce. Regardless of its effectiveness or appropriateness, the European model represents a new conflicts model and deserves extensive analysis. However, conflicts lawyers have more or less faced a dilemma: on one hand, the recent legislative reform and policy debates in Europe show that the protective conflicts rules have continuous importance in policy and law making and the originality of certain issues, especially those generated by e-commerce, has continued to attract great interest and the attention of academics worldwide. On the other hand, there is a lack of case law, which questions the practical importance of the subject. Professor Hill has put this issue on the table. It is a great pleasure to read a book which studies the issue from a different angle. By applying both legal and socio-economic analyses, and taking account of persuasive data and statistics, the book provides not only doctrinal analyses of the existing rules, but also empirical analysis which closely connects the law with its functioning in reality. Professor Hill criticises two illusions existing in the legal study in cross-border consumer contracts. One is the fanciful idea in relation to e-commerce, i.e. that it represents something quite different from any terrestrial conflict of laws problems which have arisen in the history of the subject. The second is the exaggeration of the practical importance of private international law in cross-border consumer contracts. Professor Hill argues that private litigation is not an appropriate method to address cross-border consumer claims, and suggests that the development of protective private international law is ‘of more symbolic and theoretical importance, than of practical value.’

Cross-border Consumer Contracts is a comprehensive academic work that explores consumer access to justice in cross-border contracts from a practical and empirical point of view. It pulls theory right back into reality. This fundamentally realistic view on consumer private international law and on the whole picture of consumer access to justice in EU is thought-provoking and could contribute greatly to policy-making. The book is rich in materials, which cover much broader areas than simply private international law, and will apply not only to conflicts lawyers, but also to consumer lawyers and dispute resolution specialists. This review article will focus primarily on the private international law aspect of the book. It will begin by scrutinising Hill’s two main arguments, namely, the influence of e-commerce in private international law, and the functioning of private international law in consumer contracts; and then consider how effective the European rules could be in an international context.