I. INTRODUCTION
Since 2003 the Organization of American StatesFootnote 1 has concentrated most of its efforts on the harmonization of international consumer law. It has become the current focal point of the legal harmonization process undertaken by the Inter-American Specialized Conference on Private International Law (hereinafter CIDIP).Footnote 2 As its name indicates, the CIDIP is concerned with conflict issues and therefore with private international law rules understood in a broad sense (ie choice of law, jurisdiction, judicial cooperation and international arbitration).Footnote 3 However, the CIDIP VI, in 2002, has changed this ‘paradigm’ of codification, enlarging even more the scope of the inter-American unification.Footnote 4 Thus, the Inter-American Model Law on Secured Transactions deals with both domestic and international relationships, and by consequence most of its provisions are substantive rules. The current state of affairs of the treatment of the subject-matter of consumer protection offers a mix of proposals made by Brazil, Canada and the United States (US), reaffirming the change introduced in 2002.
Brazil has presented a Draft Convention on the Law Applicable to International Consumer Contracts and Transactions, Canada has proposed a Model Law on Jurisdiction and Choice of Law to Consumer Contracts, and the United States (US) have submitted a Draft of Legislative Guidelines on Availability of Consumer Dispute Resolution and Redress for Consumers with three annexes that provide: a) a Model Law on Small Claims; b) Model Rules for Cross-border Arbitration; and c) a Model Law on Government Redress.Footnote 5
In the inter-American harmonization process, as well as in other similar processes undertaken by different international organizations, it is not common to be confronted with three different proposals relating to the same topic. What usually happens in other international organizations, as well as in the CIDIP, is a discussion based on one project and its different versions. It is perhaps just a consequence of the characteristics of the CIDIP as a codification body, which functions essentially with the assistance of Member States' activity, because of the absence of a permanent secretariat specifically dedicated to private international law codification. Anyway, the existence of different available options and various approaches should not be seen as a negative feature; quite the opposite.
In addition to the interest of the subject-matter itself, current efforts in the Americas provide a great opportunity to test the different possible techniques to achieve international legal harmonization within a regional organization and to analyse the compatibility between them. At the same time, it provides a chance to observe and compare the different approaches proposed to offer to consumers a way to solve appropriately their cross-border disputes with suppliers.Footnote 6 This paper will deal with these issues, as well as with the policies embodied into them.
II. DIFFERENT INSTRUMENTS (FROM HARD TO SOFT LAW)
Besides its practical relevance to solve real disputes, the current movement which takes place in the Americas within the OAS is interesting from both a theoretical and a technical point of view. Indeed, three different approaches have been adopted by the initiators of these three projects. The choice of the best approach—ie the most efficient in terms of harmonization of consumer law—should only be made after an in-depth analysis of each instrument.
A. Brazilian Draft Convention on the Law Applicable to International Consumer Contracts and TransactionsFootnote 7
At first sight, the instrument proposed by Brazil is a classical conflict-of-laws convention. In fact its single goal is to establish which law applies to a certain kind of private international relationship. Nevertheless, a more detailed scrutiny shows that it is anything but classical, at least within the very context of rules on international consumer contracts. The key of the Brazilian draft is a combination between limited party autonomy on the one hand and the principle of the most favourable law to the consumer on the other hand.Footnote 8 Namely, parties may choose the law of the consumer's domicile, the law of the place of conclusion of the contract, the law of the place of performance, or the law of the provider'sFootnote 9 domicile or seat.Footnote 10 For passive consumers (ie for contracts and transactions made while the consumer was in her or his country of domicileFootnote 11), the chosen law shall apply to the extent that it is the most favourable to the consumer, compared with the other possible applicable laws.Footnote 12 If there is no valid choice of law by the parties, the applicable law will be the law of the consumer's domicile (for passive consumers)Footnote 13 or the law of the place of contracting (for active consumers).Footnote 14
This draft provides that the choice of law ‘must be express and in writing, known and agreed in each case’.Footnote 15 It also introduces the duty of the provider to give clear information either about the law chosen as applicable in standard terms of reference or about the possible options between different laws available to the consumer.Footnote 16 Other provisions of this draft may modify the law applicable in principle. Thus, the court may exceptionally apply a different law from the one indicated in the convention, provided that this law be both more closely related with the contract and more favourable to the consumer.Footnote 17 In addition, internationally mandatory rulesFootnote 18 of the forum shall apply in any case,Footnote 19 while internationally mandatory rules of the consumer's domicile only apply whenever the conclusion of the contract was preceded by any negotiations or marketing activities by the provider or its representatives in that country.Footnote 20 Finally, the Brazilian draft also includes specific rules for travel and tourism contracts and for timeshare contracts.Footnote 21
B. Canadian Draft Model Law on Jurisdiction and Choice of Law
From the very beginning of the CIDIP VII processFootnote 22 Canada asserted that the way to achieve harmonization of international consumer law in the Americas consisted in elaborating a model law dealing only with jurisdiction. However, some days before the Porto Alegre (Brazil) meeting of experts in December 2006—which has been the most important event within the process of preparation of the CIDIP VII—Canada added to its Draft Model Law on Jurisdiction one provision on applicable law. In any event, beyond the very content of the proposal, it is worth underlining the constructive attitude of Canada in this discussion despite being traditionally sceptical about the regional process of codification in the Americas.Footnote 23
For the determination of both issues of jurisdiction and applicable law, the Canadian proposal is also based on party autonomy but in a very different way. Essentially, a choice of forum clause is invalid for contracts involving passive consumersFootnote 24 if the agreement was made before the commencement of the proceedings, and if the chosen jurisdiction is not the jurisdiction in which the consumer is a resident.Footnote 25 In the same vein, a choice of law clause is invalid for contracts involving passive consumersFootnote 26 if the clause deprives the consumer of the protection to which he or she is entitled pursuant to the laws of the State of his or her habitual residence.Footnote 27 In the absence of a valid choice of forum or of the submission of the defendant, the court of the State of the defendant's residence has jurisdiction.Footnote 28 A court has also jurisdiction if there is a real and substantial connection between the State of the court and the facts on which the consumer contract case is based.Footnote 29 Every claimant may prove that such a connection exists, but this connection is presumed to exist in the case of passive consumers who bring a case before the courts of their country of residence against a provider who resides in another State.Footnote 30 In the field of the applicable law the subsidiary rule for passive consumers is, in the absence of a valid choice-of-law clause, the application of the law of the consumer's State of residence.
One of the scenarios of passive consummation arises when the origin of the contract was a solicitation of business in the consumer's State by the provider and the consumer and the provider were not in the presence of one another in the provider's State when the contract was concluded. The draft Model Law presumes that a solicitation by the provider existed, but the provider may demonstrate that he or she took reasonable steps to avoid concluding consumer contracts with consumers residing in the consumer's State.Footnote 31
Canadian rules on jurisdiction allow Canadian courts to decline jurisdiction using the well-known common law device of forum non conveniens.Footnote 32 In order to decide the declination of the exercise of its jurisdiction, this draft provides the court with a non-exhaustive list of circumstances to take into accountFootnote 33 including the law to be applied and the fairness and efficiency of the legal system as a whole. In other words, the Canadian proposal also provides for a comparative evaluation of the law applicable.
C. US Draft Legislative Guidelines (With Three Annexes Providing Model Laws and Model Rules)
In the beginning of the CIDIP VII process, when the OAS called Member States to propose topics to compose the working agenda, the answer of the United States was that they were concerned for electronic commerce. Two subjects were then presented by the US, claiming that in both cases ‘rules should be formulated in the form of an Inter-American treaty, although a model law would also be acceptable.’Footnote 34 The proposed subject-matters were: a) new uniform rules on cross-border investment securities transactions, covering the electronic creation of investment securities (stocks, bonds, etc), their registration, pledge, clearance and settlement of transactions and related transaction rights, as well as the rights and responsibilities of securities intermediaries and of other holders of rights in these securities; and b) rules to provide for electronic filings, searches and certifications in connection with local or regional electronic commercial registries. In addition, the US proposed that the draft Inter-American Rules on Electronic Documents and Signatures, which had already been presented at the CIDIP VI but not adopted on that occasion, ‘be again reviewed and finalized as model rules’.Footnote 35 Although the two main subjects proposed by the US were supported by Chile and Peru, only the second one was included in the agenda of the CIDIP VII.Footnote 36
There was nothing on consumer issues in the letter from the US. Nevertheless, the US expressed its broad support for this topic,Footnote 37 which had been suggested by Brazil, Canada, Mexico and Uruguay. Once the Member States reached an agreement in the Committee on Juridical and Political Affairs of the Permanent Council of the OAS, including consumer protection in the agenda and after its adoption by the General Assembly, the US presented, on 24 October 2006, its ‘Draft Proposal for a Model Inter-American Law on Availability of Consumer Dispute Resolution and Redress for Consumers’. The document submitted, however, did not have the structure of a model law, being rather a list of goals and guidelines that national legislatures should take into account to develop consumer protection.Footnote 38 After having been discussed in the Meeting of Experts held in Porto Alegre in December 2006, the US revised the original proposal and asked the experts for additional comments. Comments and suggestions were made. According to the US delegate, all of the responding delegations commented that the US proposal was more in the nature of a legislative guide. Hence, the nature of the US proposal was changed and became a (general) legislative guide with three (specific) model laws.
Seen as a whole, the US Draft Legislative Guidelines is too long an instrument to be summarized in a few words. The nature of the proposal does not help. The same document eloquently says that ‘these Guidelines offer a flexible common framework of general principles to enable OAS members to improve access to redress for consumers, rather than a single model law for all member states.’Footnote 39 Notwithstanding this confession, several points of the US proposal deserve attention.
Annex A provides sample legislative language for implementing a domestic small claims procedure for those States with no such procedure in place. The characteristics of a specific procedure for resolving small claims are clearly set forth at the beginning of the draft: it should be simple, expeditious, economical, and fair.
• Simple: the scope of the Model Law is broad and does not distinguish between civil or commercial claims; as long as the damage is suffered by a consumer as defined in the legislative guidelines the Model Law should be applied.Footnote 40
• Expeditious: the procedure should be in writing (but an oral hearing could be granted on an exceptional basis) and the time periods to respond to a claim and to notify a claim to render the judgment are short.Footnote 41 Moreover, the tribunal may hold a hearing through an audio, video or email conference or other communications if the technical means are available and both parties agree.Footnote 42
• Economical: representation by an attorney in a small claims tribunal shall not be mandatory; a party may be represented by a friend or relative if the representative is familiar with the facts of the case and if that is consistent with the procedural law of the State.Footnote 43
• Fair: it is reminded that the tribunal shall respect the right to a fair trial and the principle of an adversarial process.Footnote 44 However, the right of appeal to the decision rendered by the tribunal of small claims is subject to the procedural law of the forum.Footnote 45
Annex C is a model law on government authority to provide redress and cooperate across borders against fraudulent and deceptive commercial practices; it is based in the experience of the Federal Trade Commission of the US. Its aim is twofold. First, it provides for the designation or creation of a consumer protection authority in each Member State that is vested with the power to obtain redress for consumers and is able to cooperate with their foreign counterparts. Secondly, the law also seeks to facilitate the enforcement of certain judgments for consumer redress across borders. The draft proposes that the authority ‘shall have the investigation and enforcement powers necessary for the application of this Law and shall exercise them in conformity with national law’;Footnote 46 procedure remains then in the domestic arena. The competent authorities should be enabled to take action and obtain remedies, including but not limited to monetary redress, for or on behalf of consumers ‘who have suffered economic harm as a result of fraudulent or deceptive commercial practices’; once again a broad definition of damage as suffered by the consumer appears in this draft.Footnote 47 On the international level, the interesting points are the cooperation between authoritiesFootnote 48 and the specific procedure for recognition of foreign civil judgments for consumer redress.Footnote 49 This last issue is particularly worth noting as the draft departs from its traditional view not to interfere in the national procedural law. Here, it is proposed that:
‘[W]hen a foreign competent authority obtains a civil monetary judgment for redress to consumers […] and such authority seeks to have that judgment or order recognized and enforced in [Member State], the judicial authorities may treat that judgment as equivalent to such a judgment in the name of a private party or parties, and shall not disqualify such a monetary judgment from recognition or enforcement as penal or revenue in nature, or based on the public nature of the law enforced, due solely to the governmental status of the plaintiff pursuing the redress claim.’Footnote 50
Both drafts are proposed as complementary to each other, although it is established that ‘both proposals are meant to work as alternatives for providing meaningful redress to consumers’.Footnote 51
Finally, Annex B refers to model rules for electronic arbitration of cross-border consumer claims. This annex is treated here as the last one as it plays a complementary role to the other two. Indeed, Annex B provides draft model rules for electronic arbitration of consumer claims. Unlike Annex A and C, Annex B is only conceived for cross-border relations. Hence, it is possible to deduce from this precise scope that arbitration is not seen as an option for domestic consumer claims. Indeed, this feature seems rather odd, especially in the context of the US proposal. The claim cannot exceed US$1,000.Footnote 52 The arbitration procedure is qualified as simple, economical, fast, and fair; as a result it should be effective.Footnote 53 Notwithstanding that, rules seem quite similar to rules in commercial arbitration but they are drafted in a more vague and incomplete fashion.Footnote 54 Moreover, US and Canadian experiences with online arbitration is not particularly promising for other countries.Footnote 55
D. The Nature of the Proposals and the Issue of their Compatibility
Only the Draft Convention proposed by Brazil would be binding for Member States. For that reason it is also the most difficult instrument to negotiate and eventually the most complicated to enter into force due to the need of ratification by State parties. Advantages and disadvantages of concluding an international convention are well known. On one hand, due to its legal nature a convention lacks flexibility. Even if a convention provides for the possibility to ratify it with reservations, the text is, and must be, taken as a whole. On the other, the fact that the text would be adopted as such without being adapted according to the peculiarities of each State could enable a true harmonization of consumer law. Moreover, a convention may also serve as a model law as a number of conventions have already shown, particularly conventions adopted within the OAS.Footnote 56 This possibility could be particularly useful in the regulation of international consumer contracts, given that most national legal systems in the Americas have no rules for these contracts, either on applicable law or on jurisdiction.Footnote 57
However, soft law is likely to be a faster way to achieve harmonization of consumer law. Indeed, model laws and legislative guides offer a degree of flexibility and adaptability in accordance with the needs and wishes of each State that facilitates negotiation. Nonetheless, it can be feared with good reason that the ultimate aim of harmonization of consumer law would not be successfully fulfilled with such an instrument which varies from country to country.
Instead of betting all the chances of harmonization on one instrument, a combination of different types could be chosen. For instance, the adoption of a convention regarding choice of law matters and a model law on international jurisdiction, as long as both were compatible (adopting the same fundamental policies), is an option which could be in principle feasible. However, in the concrete CIDIP VII scenario proposals from Brazil and from Canada seem not to be compatible because of their departing philosophies. Nevertheless, a convention such as the one proposed by Brazil could co-exist with a model law on jurisdiction (or even with a convention on jurisdiction) other than that proposed by Canada.Footnote 58
Regarding the US proposal, its compatibility with both other texts is clear as far as they deal with different aspects of the same reality. US (general) Draft Legislative Guidelines and US (particular) draft model laws, aim at reforming the national legal systems in three particular aspects, namely, the introduction of a procedure for resolving small claims in consumer contracts; the introduction of a procedure for the electronic arbitration of the most common cross-border consumer claims; and the establishment of competent consumer protection authorities vested with the power to obtain redress for consumers and to cooperate with their foreign counterparts. Obviously, none of these goals is contradictory with the adoption of a common set of rules to determine the law applicable to international consumer contracts.Footnote 59 The US delegation has openly recognized that ‘these Guidelines are not intended to provide details of procedures for all attempts by individual businesses and consumers to resolve disputes directly and informally’;Footnote 60 on the contrary, they ‘are intended to complement existing […] rules regulating or affecting business-to-consumer transactions’.Footnote 61
Already in 2005 delegations assembled in the Committee of Juridical and Political Affairs of the OAS had agreed that the CIDIP VII would produce both a convention on applicable law and a model law on monetary redress. The OAS legal adviser in charge of the CIDIP at the OAS Department of International Law explains the agreement in the following words:
‘[T]he convention would create a system to determinate the applicable rules to consumer litigation, whilst the model law would complement the convention with mechanisms for the redress whenever there are no more effective solutions.’Footnote 62
III. DIFFERENT ASPECTS OF CONSUMER (PRIVATE INTERNATIONAL) LAW
A. The Options: From Law Applicable to ADR/ODR
The difference of approach is also reflected in the issues covered by the three projects. The Draft Convention is the most limited and the most concrete; it restricts itself to the issue of the applicable law. This limitation is motivated by a very good reason: the narrower the ambit of a convention, the easier it is to negotiate it and to bring debates to a satisfactory and prompt resolution.Footnote 63
However, it is submitted that harmonization should be first achieved on the jurisdiction issue.Footnote 64 As consumer law contains a lot of mandatory provisions their application depend heavily on the jurisdiction seized. Nonetheless, the negotiation of fora and other jurisdictional issues are the most difficult to compromise on as jurisdiction is intrinsically linked with national legal orders and often seen as a question of sovereignty. That is the reason why, in spite of the fact that before the beginning of the official discussions in the cyber-forum of the CIDIP several voices called informally for the inclusion of jurisdictional issues within the scope of the draft, the idea that prevailed was to reserve jurisdictional matters for the near future.Footnote 65 Failed experiences from other organizations also played a role in taking the decision not to introduce those matters in the Brazilian Draft.Footnote 66
The Canadian Draft Model Law encompasses both issues of applicable law and jurisdiction. Nevertheless, only the latter was primarily identified by Canada as an issue to be treated by the CIDIP VII.Footnote 67 Treatment of the applicable law issue was added later and it consists of only one article.Footnote 68 In spite of being more inclined to jurisdictional issues Canada walks side by side with Brazil on the traditional conflicts road. Both countries, as well as almost all the States represented in the CIDIP VII debate, find that there is still room to regulate private international law ‘classical’ issues in consumer matters.Footnote 69
The Draft Legislative Guidelines intend to go further in the direction of a treatment of consumer law as a whole as they propose new procedures for securing remedies to settle disputes arising between consumers and professionals. As mentioned above, the Guide proposes to build a system of legal cooperation between States' authorities. The project is ambitious as it also proposes creating a common system of alternative dispute resolution generalized to cover almost all consumer disputes. The implicit idea is that conflict rules (both on applicable law and jurisdiction) are not effective (and then not necessary) to deal with consumer contracts.Footnote 70 In the opinion of the US what all the OAS Member States need is a set of rules on small claims; authorities protecting consumers; and online arbitration. Such a proposition hides at least two serious flaws. First, a good part of the rules proposed are more relevant for internal cases rather than international ones, while CIDIP works are mainly focused on transboundary situations. Secondly, to operate in an international level some of those rules require either complementing rules or concluding agreements with other States. For instance, according to Article 4(1) of the Draft Model Law on small claims, the claimant shall submit a claim form ‘to the relevant tribunal’. Thus, for this rule to be workable in the international scenario, jurisdiction rules are needed to know which court could take the case, ie which is the relevant tribunal. If the US drafters were only thinking of purely domestic cases the proposal has nothing to do with the Brazilian Draft and the issue of mutual compatibility is totally solved.
B. Need For Choice of Law Rules
Given there is no conflict between the proposals from Brazil and from the US (or, in other words, accepting the compatibility between different instruments dealing with different aspects of the same matter), one can still question the need and value of each one. US delegates have expressed the idea that, to the extent that consumer disputes are usually of a small monetary value, litigation in ‘ordinary’ courts does not make sense because proceedings will be very expensive and long and, by consequence, unaffordable for consumers.Footnote 71 According to this perspective rules on applicable law would be worthless since consumer disputes should not be solved before the courts. Besides, the very determination of the applicable law would be expensive in comparison with the amount of the disputes.Footnote 72
Even if it is admitted that most of consumer disputes involve small amounts of money, it is hardly possible to share the US vision about ‘classical’ consumer protection methods. There is no logical connection between these two assertions. The fact that alternative remedies might be useful does not necessarily mean that any other method is worthless. Even the International Chamber of Commerce, which does not show much sympathy towards ‘classical’ conflicts approaches, agrees with its necessity. The ‘ICC believes that the greatest majority of consumer complaints will be resolved either by a company's internal customer service or similar mechanism, or ADR. However, this does not preclude the need for a predictable legal framework in which to address the few disputes that persist.’Footnote 73 The same has been said in the European context, in relation with the Regulation establishing a European small claims procedure.Footnote 74
There is still another reason to adopt conflicts rules in matters of consumer law. Almost all American countries have rules more or less developed on consumer law. Some Latin American States maintain a high standard of protection. On the contrary, almost no national legal system in the Americas has specific rules for international consumer relationships.Footnote 75 For these reasons, despite of the attraction exercised by the Draft model laws, Latin American States have demonstrated their interest in the Draft Convention.Footnote 76
IV. POLICIES
Beyond the choice of the most appropriate instrument or combination of instruments used to achieve harmonization of consumer law, the success of the enterprise depends largely on the policies adopted by the States and by the OAS. Consumer protection needs more than a good system of rules and proceedings. Education, advertising, and promotion of good conduct are among the long list of activities that public powers may develop to promote consumer protection at every level (local, national, supranational or regional). Notwithstanding the foregoing the policies embedded in the different proposals need to be evaluated.
The Draft Convention foresees that, subject to some conditions, the most favourable law to the consumer should be applied. This principle reflects one policy which is clearly focused on the protection of the consumer. Of course, this policy needs to be counterbalanced by the option to choose the law and the consequent legal certainty that the Convention would offer to providers.Footnote 77 Such an option should be analyzed in the context of the current state of affairs in the Americas, which shows that national legal systems are very heterogeneous and that the courts usually apply the lex fori to solve international consumer contracts.
This policy is not always the one pursued by all the States negotiating in the working group of the OAS. Some OAS Member States—specifically Canada and the US—as well as two members of the Inter-American Juridical Committee (IJC),Footnote 78 have criticized the use of the principle of the most favourable law. According to those delegations, this principle would be difficult to apply in practice.Footnote 79 Therefore, the applicable law would be hardly predictable. As an answer to these critics, the Brazilian delegation has proposed a rule containing several subsidiary criteria determining which law should be deemed the most favourable to the consumer. Thus, the first one is the law of consumer's domicile; the second one is the law of the common residence of the consumer and one of the branches of the provider, and so on.Footnote 80 It is submitted that the introduction of these criteria is not a good answer since it might result in the loss of the key point of the Draft Convention. In most cases, on the one hand, it will result in coming back to the expanded idea that the better law for consumers is the law of their own domicile.Footnote 81 Since this law is the one provided by the Brazilian Draft for cases in which there is no valid choice of law, the convention would give only one solution—and the ‘traditional’Footnote 82 one—for all contracts concluded by passive consumers. On the other hand, many criticisms are directed against the principle of the most favourable law to the consumer itself. Therefore, no change in its application will serve to satisfy those critics.
The USFootnote 83 and the members of the IJC mentioned aboveFootnote 84 have also argued that the Brazilian proposal could be discriminatory because ‘exporters might be subject to the laws of the exporting country or to those of the importing country, depending upon which ones are most favourable to the consumer’ […] but ‘a business within the importing country would only be subject to the rules of that country, since the draft convention only applies to a cross-border international consumer contract’.Footnote 85
All these questions deserve further discussion. Nevertheless, it is possible to ascertain that the introduction of a substantial policy in a conflicts convention is not new within the CIDIP process. As a matter of fact the 1989 Inter-American Convention on Support Obligations (CIDIP IV), in force in 12 Latin-American States, establishes in its Article 6 that:
‘[S]upport obligations, as well as the definition of support creditor and debtor, shall be governed by whichever of the following laws the competent authority finds the most favourable to the creditor: a. That of the state of domicile or habitual residence of the creditor; b. That of the state of domicile or habitual residence of the debtor.’Footnote 86
In the same vein, the very principle of the existence of a consumer's right to the access to justice and its concrete scope are controversial issues. Again, such a principle is defended by some OAS Member States, whereas others do not proclaim it as a right. A common position about that should be taken before adopting specific provisions regarding either jurisdiction or ADR. Furthermore, online dispute resolution (ODR) mechanisms already exist in several parts of the world and in diverse ways, both exclusively for consumer disputes and for other kinds of controversies.Footnote 87 The existence of these mechanisms has not eliminated the use of (and, therefore, the need for) other mechanisms and tools for conflicts resolutions.
All in all, the remaining question is what would be the consequence of leaving the Brazilian proposal aside? As mentioned above, Latin American countries have no specific conflicts rules on consumer contracts. Whenever a court of a Latin American State faces international consumer contracts, the general attitude consists in denying party autonomy and in applying the lex fori. In some situations, courts seem not to be aware of the internationality of the case.Footnote 88 Even where party autonomy is accepted in general, without exception, rules on consumer contracts are usually seen as mandatory provisions and therefore excluded from the scope of party autonomy.Footnote 89 Thus, although consumer contracts are not explicitly excluded from the scope of the 1994 Mexico City Convention on the law applicable to international contracts (CIDIP V), the prevailing opinion is that consumer contracts are not covered by that Convention.Footnote 90 In addition, current national projects on private international law (Argentina, Uruguay) do not allow choice of law clauses (or choice of forum clauses) in consumer contracts.
V. FINAL REMARKS
Three final remarks can be drawn from the current approaches towards harmonization of consumer laws in the Americas.
First, consumer law needs an integrated treatment (a single model law or convention is not enough to solve the problems caused by consumer transactions; a good combination of several instruments—and policies—could be preferable). The adoption of the Brazilian proposal, which is ready to be submitted for approval in a diplomatic conference, must not (and will not) preclude the implementation of others consumer protection mechanisms.
Secondly, given that most of international consumer transactions are made by electronic means, any instrument adopted towards the harmonization should be suited to dealing with e-commerce. Nonetheless, even if online consumer is becoming increasingly significant, the Internet does not constitute the only way to conclude consumer contracts. Consumer relationships still survive outside the net. Therefore, the best regulation on consumer law requires a complete treatment of the matter, online and offline.
Thirdly, it should be taken into consideration that some instruments can require high investments unaffordable for some Latin American countries. For instance, to create a consumer protection authority vested with the power to obtain redress for consumers in international situations would demand huge financial resources in order, inter alia, to make this authority efficient.
