Private International Law Tourism Electronic Contracts Dra. Silvia Feliu Álvarez de Sotomayor. IFFTA Europe Workshop April 2009. Tourism Electronic Contracts International contracts. -CHARACTERISTICS OF THE CONTRACT :
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IFFTA Europe Workshop
-CHARACTERISTICS OF THE CONTRACT:
A) PROFESSIONAL (SELLER) DOMICILE IN A MEMBER STATE DIFFERENT THAN TOURIST HABITUAL RESIDENCE OR DOMICILE
B) ELECTRONIC CONTRACT:
-B2B: contracts of carriage
-B2C: package travel
1- CROSS-BORDER CLAIMS: JURISDICTION OR ALTERNATIVE DISPUTE RESOLUTION?
2- APPLICABLE LAW: SOFT LAW/HARD LAW?
For example: Spanish European Consumer Centre (CEC)
a) Claims coming from Spanish citizens who have bought goods or hired services in any country belonging to the EU other than Spain.
b) Claims coming from EU citizens (non-Spanish citizens) who have bought goods or hired services in Spain.
a) First solution: Consumer experts contact the suppliers and mediate between them and the users
b) Second solution: Alternative Resolution systems
c) Third solution: legal proceedings
1º) ADR database: names and contact details of the bodies responsible and which Member States and EEA countries consider to be in conformity with the Commission Recommendations 98/257/CE and 2001/310/CE
2º) European Consumer Centres provide consumers with information about the procedures involved and can help them to access such bodies in another country
Advantage of ADR?
-Flexibility, cheaper, quicker and more informal than Courts
1- JURISDICTION: Regulation (EC) Nº 44/2001: B2B/B2C
2- APPLICABLE LAW: Regulation (EC) Nº 593/2008: B2B/B2C
3- RECOGNITION AND ENFORCEMENT: Regulation (EC)
Article 15 R.44/2001: B2C DEFINITION
1.In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section,[…], if:
(a) it is a contract for the sale of goods on instalment credit terms; or
(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or
(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means (=INTERNET), directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.
Article 15 R.44/2001: B2C DEFINITION
3. This Section shall not apply to a contract of transport other than a contract which, for an inclusive price provides for a combination of travel and accommodation
B2C = Package travel
B2B = Contract of transport
Article 16 R.44/2001
1. A consumer may bring proceedings against the other party:
-in the courts of the Member State in which that party is domiciled
-or in the courts for the place where the consumer is domiciled
2. Proceedings may be brought against a consumer:
-only in the courts of the Member State in which the consumer is
3. This Article shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending
Article 17 R.44/2001
The provisions of this Section may be departed from only by an agreement:
Case Study: See General Conditions Web Site
1º- Agreement of the parties (after the dispute has arisen)
2º- Courts of the Member State in which seller is domiciled
Courts for the place where the consumer is domiciled
option of the consumer plaintiff
Art. 6 Regulation (EC) Nº 593/2008
1-the parties may choose the law applicable to a contract but such a choice may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable.
2- law of the country where the consumer has his habitual residence
Case study: package travel, package holidays and package tours are consumer contracts (art. 6.4. b)
1- Prorrogation of jurisdiction(art. 23 and 24 R.44/2001)
2-Courts for the place of performance of the obligation (Art 5.1 R. 44/2001) :
A person domiciled in a Member State may, in another Member State, be sued:
1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention)
Artículo 33. Jurisdicción
An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
1-THE PARTIES MAY CHOOSETHE LAW APPLICABLE TO A CONTRACT FOR THE CARRIAGE OF PASSENGERS ONLY THE LAW OF THE COUNTRY WHERE:
a) THE PASSENGER HAS HIS HABITUAL RESIDENCE; OR
b) THE CARRIER HAS HIS HABITUAL RESIDENCE; OR
c) THE CARRIER HAS HIS PLACE OF CENTRAL ADMINISTRATION; OR
d) THE PLACE OF DEPARTURE IS SITUATED; OR
e) THE PLACE OF DESTINATION IS SITUATED
2- LAW OF THE COUNTRY WHERE THE PASSENGER HAS HIS HABITUAL RESIDENCE, PROVIDED THAT EITHER THE PLACE OF DEPARTURE OR THE PLACE OF DESTINATION IS SITUATED IN THAT COUNTRY
3- LAW OF THE COUNTRY WHERE THE CARRIER HAS HIS HABITUAL RESIDENCE
4- WHERE IT IS CLEAR FROM ALL THE CIRCUMSTANCES OF THE CASE THAT THE CONSTRACT IS MANIFESTLY MORE CLOSELY CONNECTED WITH OTHER COUNTRY, THE LAW OF THAT OTHER COUNTRY SHALL APPLY
Recognition (Art. 33 R.44/2001):
1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.
Enforcement (Art. 38 R.44/2001)
1. Legal Proceedings =
Jurisdiction + Applicable Law + Recognition and Enforcement
= too complicate for tourism electronic contracts claims
2. Alternative Dispute Resolution=
Flexibility, cheaper, quicker and more informal than Courts + Self regulation
= Adequate for tourism electronic contracts claims!!