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International Sale of Goods pp 129–141Cite as

International Consumer Sales: International Jurisdiction and ADR in Europe and China

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Part of the book series: China-EU Law Series ((CELS,volume 5))

Abstract

Consumer protection constitutes a major policy objective in both the European Union (EU) (and its Member States taken individually) and China. Adequate protection of consumers requires the adoption of specific legislation in a variety of substantive and procedural (i.e., dispute resolution) areas. This chapter focuses on the latter aspect and deals with two particular issues relevant to international consumer transactions: (a) rules on international jurisdiction over consumer disputes and (b) the use, availability, and functioning of ADR procedures to resolve such disputes.

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Notes

  1. 1.

    See Sempi (2011), pp. 4–8.

  2. 2.

    As early as 1993, the Chinese legislator adopted the “Law of the People’s Republic of China on Protection of Consumer Rights and Interests”. The law was substantially revised in 2013. For a critical analysis of those revisions, see Zhixiong (2014).

  3. 3.

    Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 27 September 1968.

  4. 4.

    It has to be noted, however, that the Regulation does not apply in or to Denmark. See Recital 41 of the Regulation’s Preamble.

  5. 5.

    Regulation Art. 1(1).

  6. 6.

    See Recital 14 of the Regulation’s Preamble.

  7. 7.

    See Regulation Art. 6(1): “If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall… be determined by the law of that Member State.”

  8. 8.

    See Regulation Art. 4(1): “Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

  9. 9.

    Regulation Art. 7–9.

  10. 10.

    Regulation Art. 10–16.

  11. 11.

    Regulation Art. 17–19.

  12. 12.

    Regulation Art. 20–23.

  13. 13.

    Regulation Art. 24.

  14. 14.

    Regulation Art. 25–26.

  15. 15.

    Regulation Art. 17(1).

  16. 16.

    Regulation Art. 17(1).

  17. 17.

    Regulation Art. 19.

  18. 18.

    Regulation Art. 1(2)(d).

  19. 19.

    Regulation Art. 19.

  20. 20.

    The Directive’s Annex contains an indicative and non-exhaustive list of terms which may be regarded as unfair. Section 1(q) of that Annex refers to terms which have the object or effect of “excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.”

  21. 21.

    See Directive Art. 3(1): “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.”

  22. 22.

    CPL Art. 23.

  23. 23.

    CPL Art. 28.

  24. 24.

    Zhenjie (1999), p. 207 (observing that “domicile and habitual residence of the defendant are the principal connecting factors of jurisdiction for purely domestic cases as well as for those involving foreign elements”).

  25. 25.

    CPL Art. 259 provides: “The provisions of this Part shall be applicable to any civil litigation involving foreign elements within the territory of the People’s Republic of China. Where it is not covered by the provisions of this Part, other relevant provisions of this Law shall apply.”

  26. 26.

    CPL Art. 265. For commentary on these jurisdictional bases, see Zhenjie (1999), pp. 209–222.

  27. 27.

    See Li and Zhou (2012) (stating that “[w]hen Chinese legislators prepared the draft CCPI [Consumer Protection Law], EU consumer protection law was taken as reference point. However, nearly 20 years after, while the EU has made great progress in the field, China is far behind.”).

  28. 28.

    Zhenjie (1999), p. 213.

  29. 29.

    European Commission, Impact Assessment (2011), p. 13.

  30. 30.

    European Commission, Impact Assessment (2011), p. 13.

  31. 31.

    Directive 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matters.

  32. 32.

    European Parliament (2014), “Rebooting” the Mediation Directive.

  33. 33.

    Directive Art. 2(1).

  34. 34.

    Directive Art. 2(1).

  35. 35.

    Art. 5(1) of the Directive provides: “Member States… shall ensure that disputes covered by this Directive and which involve a trader established on their respective territories can be submitted to an ADR entity which complies with the requirements set out in this Directive.”

  36. 36.

    Under Art. 4(1)(h) of the Directive, an ADR entity is defined as “any entity, however named or referred to, which is established on a durable basis and offers the resolution of a dispute through an ADR procedure”.

  37. 37.

    Directive Art. 8(c).

  38. 38.

    Directive Art. 13(1).

  39. 39.

    Directive Art. 13(2).

  40. 40.

    See, in particular, Art. 6 of the Directive establishing requirements of expertise, independence and impartiality.

  41. 41.

    See, in particular, Articles 7, 8 and 9 of the Directive respectively related to the transparency, effectiveness, and fairness of ADR procedures.

  42. 42.

    Article 8(e) of the Directive provides that: “the outcome of the ADR procedure [shall be] made available within a period of 90 calendar days from the date on which the ADR entity has received the complete complaint file.”

  43. 43.

    Regulation Art. 2(1).

  44. 44.

    Regulation Art. 2(1).

  45. 45.

    Regulation Art. 8.

  46. 46.

    Regulation Art. 9.

  47. 47.

    Regulation Art. 10–11.

  48. 48.

    See Sempi (2011), p. 11 (referring to the “propensity towards a non-judicial solution of disputes traditionally rooted in East Asian societies).

  49. 49.

    See Zhixiong (2014), p. 168.

  50. 50.

    See Xu.

  51. 51.

    Xu, p. 2.

  52. 52.

    Xu, pp. 4–6.

References

  • European Commission, COMMISSION STAFF WORKING PAPER, IMPACT ASSESSMENT accompanying the document Proposal for a Directive of the European Parliament and of the Council on Alternative Dispute Resolution for consumer disputes (Directive on consumer ADR) and Proposal for a Regulation of the European Parliament and of the Council on Online Dispute Resolution for consumer disputes (regulation on consumer ODR), SEC(2011) 1408 final, 29 November 2011

    Google Scholar 

  • European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Legal Affairs, “Rebooting” the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU, 2014

    Google Scholar 

  • Li S, Zhou G (2012) The problems of China’s consumer protection law in the legal practice. Int J Bus Soc Sci 3(14) [Special Issue]:65

    Google Scholar 

  • Sempi L, ADR and consumers between Europe and China, Op. J. Vol. 2/2011, Paper n. 5, pp. 1–14, http://lider-lab.sssup.it/opinio, online publication December 2011

  • Xu J, Development of ODR in China, available online at: https://law.pace.edu/lawschool/files/iicl/odr/Xu_Junke.pdf

    Google Scholar 

  • Zhenjie H (1999), International jurisdiction of Chinese courts in contractual matters: rules, interpretation and practice. Neth Int Law Rev 46:204

    Google Scholar 

  • Zhixiong L (2014) The recent amendment to China’s consumer law: an imperfect improvement and proposal for future changes. Beijing Law Rev 5:163–171

    Article  Google Scholar 

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Authors and Affiliations

  1. Central European University, Budapest, Hungary

    Markus Petsche

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  1. Markus Petsche
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Editors and Affiliations

  1. Faculty of Law, University of Strasbourg, Strasbourg, France

    Nicolas Nord

  2. Faculty of Law, University of Reims Champagne-Ardenne, Reims, France

    Gustavo Cerqueira

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Petsche, M. (2017). International Consumer Sales: International Jurisdiction and ADR in Europe and China. In: Nord, N., Cerqueira, G. (eds) International Sale of Goods. China-EU Law Series, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-54036-8_9

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  • DOI: https://doi.org/10.1007/978-3-319-54036-8_9

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