2018 Issue 1


INTERNATIONAL PROTECTION OF CONSUMERS: THE ILA’S RECOMMENDATIONS AND GUIDELINES ON THE INTERNATIONAL CONSUMER CONTRACTS AND THE ROLE OF IACL

Release date:2018-04-27
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Claudia Lima Marques**


ABSTRACT: The Revision of the United Nations Guidelines on Consumer Protection and the creation of an Intergovernmental Group of Experts at the United Nations Conference on Trade and Development bring hope again for better days on consumer protection all over the world. On the subject of the international protection of consumers two associations have meet and joined forces: the International Law Association and the International Association of Consumer Law. This Article will analyze the role of these two associations to enhance the consumer protection in our world.

The International Law Association’s Committee on International Protection of Consumers contribution came first with the approval of the Sofia Statement on the Development of International Principles on Consumer Protection. The second major contribution came through the Johannesburg International Law Association Resolution, which analyzes all the models used by national and international actors on respect of the law applicable for international consumer contracts and also contain a second part – the Johannesburg Recommendation on international protection of consumers.

By its turn the International Association of Consumer Law has until today acted more as an academic association but since the creation of the Intergovernmental Group of Experts on Consumer Policy and Law has acted also as observer. 


KEYWORDS: United Nations Guidelines on Consumer Protection; United Nations Conference on Trade and Development; international protection of consumers; International Law Association; International Association of Consumer Law


I.Introduction

The Revision of the United Nations Guidelines on Consumer Protection and the creation of an Intergovernmental Group of Experts (IGE) at the United Nations Conference on Trade and Development (UNCTAD) bring hope again for better days on consumer protection all over the world. On the subject of the international protection of consumers two associations have meet and joined forces: the International Law Association (ILA) and the International Association of Consumer Law (IACL). This Article will analyze the role of these two associations to enhance the consumer protection in our world.

On 22 December 2015, UN General Assembly approved the Revision of the Guidelines on Consumer Protection (UN Guidelines for Consumer Protection, 1985/1999/2015). 1Although the issue of applicable law and jurisdiction to international consumer contracts was not directly tackled, we can recognize that –from a joint effort of countries like Brazil, Germany, Thailand, India and others, together with Consumers International, IACL and ILA - the international dimension of consumer law and the need for more protection and attention to cross-border consumer transactions has been recognized in this 2015 Revision of the UN Guidelines.

The UN Guidelines for Consumer Protection - revised in 1999 to include sustainable consumption and now in 2015 - bring important suggestions to address the new issues of consumer society, such as distance consumption, by electronic means and mobile, the privacy, the protection of ‘hyper’-vulnerable consumer,2 the financial and credit services, travel and mass tourism, the empowerment of consumer protection agencies, and in our subject, the international protection of consumers.  

The greatest novelty was the creation of an Intergovernmental Group of Experts on Consumer Law and Policy (IGE), a permanent group at UN dedicated to consumer issues, operating within the framework of an existing Trade and Development Commission of UNCTAD’). In October 2016, with more than 80 countries present and four members of the IACL and ILA, the first Meeting of the IGE on Consumer Protection was very successful. This first official meeting was carried out under the coordination of Doctor Teresa Moreira, who was Portugal's representative during the UNGCP reform discussions.

As I had the honor to serve, along with Professor Dr. Wei Dan, as an observer on behalf of ‘International Law Association’ of the work on revising the UN Guidelines for consumer protection,3At the Meeting of the IGE on UNCTAD, Gail Pearson and Thierry Bourgoignie were also as experts from the IACL. The subject choice to 2017 is e-commerce, in its national and international dimension. 

It seems to me that the time has come to advance the consumer protection law and policy in cross-border and international transactions. The focus of this article will be the efforts made by the International Law Association on the development of the international protection of consumers in our globalized world and on what role can be played by the IACL. 


II.The ILA’s Committee on International Protection of Consumers and the Sofia Statement on the Development of International Principles on Consumer Protection  

The International Law Association was founded in 1873 together with the Institut de Droit International and since 2008 it has a Committee on International Protection of Consumers. The Committee was created as a response to a proposal by the Brazilian Branch, because of the increase of the importance of the consumer protection in the current globalized markets and I have the honor to serve as its first Chairperson. Together with our Members from 14 different countries, with our first General Rapporteur, Prof. Dr. Diego Fernandez Arroyo (Paris, France) and our current General Rapporteur, Prof. Dr. Wei Dan (Macau, China) the Committee was able to propose two Resolutions, including a set of principles (the Sofia Statement, ILA Resolution 4, 2012) a recommendation and a Guideline (ILA Resolution 2, 2016) on international protection of consumers. These new soft law instruments are the focus of this contribution, but the Committee has acted as observer, on behalf of the ILA Headquarters, at the Hague Conference of International Law5 and at the UNCTAD.

In Rio de Janeiro, at 2008 ILA Biennial Conference, following a suggestion of ILA Branch Brazil, there was the establishment – for the first time in over 100 years – of an International Law Association Committee dedicated to protecting consumers: Committee on International Protection of Consumers.6 From this Committee came the Sofia Declaration on the development of international principles on consumer protection.7 This so called ‘Sofia Declaration’ of  30 August 2012 is the first in consumer law of the International Law Association (London), in over 130 years. 


A.The Mandate of the Committee on International Protection of Consumers

The Mandate of the ILA Committee on International Protection of Consumers was established in 2008, and since then the Committee has acted to fulfil this mandate. The internal Amsterdam Statement in 20108and the Sofia Statement (ILA’s Resolution 4/2012) are examples of the most important accomplishments of the Committee.  

Following the discussions at the Biennial Conference in Rio de Janeiro,9 the Committee on International Protection of Consumers was officially approved as an ILA Committee in November 2008, as a response to a proposal by the Brazilian Branch. The Committee’s mandate is to: 

undertake studies on the international protection of consumers, with particular regard to e-commerce, tourism and consumer accidents. To this end, the Committee will compare various national legislations on consumer protection and the standards they offer for the protection of non-national and non-resident consumers on their territories, and will consider the possible extraterritorial reach of consumer legislation. The Committee’s primary aim is to look at how national legislation on the conflict of laws and jurisdiction, as well as international treaties, model laws and regional legislation on consumer issues) deal with the issue of consumer protection in a transboundary context. It will compare national and regional solutions to the issue by bringing together specialists to provide insight into national and regional experiences on consumer protection in a transboundary context, to assist in currently existing efforts in international law-making.10


The current mandate of the Committee includes a study of the role of public and private international law to protect consumers, the review of Guidelines, Model laws and Treaties, as well as national legislations concerning protection and consumer redress, especially in the context of conflict of laws and jurisdiction. Since its creation the Committee has addressed three issues: (1) the impact of the financial crisis on consumers and its international dimension; (2) the issue of consumer redress in cross-border transactions and the role of international law to protect consumers; (3) International Organizations dealing with consumer protection. It took 4 years for the Committee to address the first two issues, which have been completed with the Sofia Declaration on the development of international principles on consumer protection. The third one is especially addressed in the Johannesburg Recommendations and Guidelines.11


B.Sofia Statement on the Development of International Principles on Consumer Protection  

The first contribution of the ILA’s Committee to the development of the international protection of consumers was in 2012.12 The International Law Association approved the ILA Resolution 4/2012, which suggests 5 principles that must guide international consumer law development.13

The so called ‘Sofia Statement on the development of international principles on consumer protection’ is as followed: 

Consumer protection should be guided by the following general principles: 

1. Consumers are the weaker party in situations of mass or standard form contracts, in particular concerning information and bargaining power. 

2. It is desirable to develop standards and to apply rules of private international law that entitle consumers to take advantage of the most favorable consumer protection. 

3. Regulation of consumer contracts should be effective and fair and ensure transparency. 

4. Responsible lending is incumbent on all those involved in consumer credit transactions, including credit providers, brokers and advisers. 

5. Consumer groups should participate actively in the development and regulation of consumer protection. 14


In other words, the principles are: 1. Vulnerability, 2. The most favorable consumer protection; 3. Fairness; 4 Responsible lending; 5. Active participation on the regulation. These ‘Sofia Principles’ are beginning to be known and quoted by the legislators, as in the Brazilian Senate15during the reform of the Brazilian Consumer Code, 16and also in Argentina, Australia, Costa Rica, Paraguay, UK and by the work of IACL (International Association of Consumer Law) and of ASADIP (Americas Association of Private International Law) on consumer protection.

Although the Committee was focus at the global financial crises, two of these principles apply in all international consumer transactions: the principle of vulnerability and principle favor consumer, which in private international law entitle consumers to take advantage of the most favorable consumer protection.


1.Principle of vulnerability and its impact in Brazil

The first principle recognized as 'international' by ILA is the principle of consumer vulnerability, a principle that guides almost all national laws17and European Union laws for the protection of the weaker party.18 The Brazilian Consumer Code updating process and the 2015 UN guidelines review builds a sense of aggravated vulnerability, distinguishing between all the ‘weaker’ consumers themselves and the group of consumers with aggravated vulnerability or hyper-vulnerability19.

The Consumer Code updating in process in Brazil supports that basic principle, especially with respect to harassment of particularly vulnerable consumer groups, the elderly, patients, the illiterate, for example. As I have written,20in the projects to update the Brazilian Consumer Code (PLS 281 and 283, 2012), the special committee of jurists, headed by Min. Antônio Herman Benjamin, introduced to the Brazilian law the idea of a fights against harassment of consumer, identifying harassing and overly aggressive marketing strategies focused in certain groups, as elderly and illiterate.21he standard used was the Unfair Commercial Practices Directive, 2005/29/CE, which at its Article 8  uses as a general definition the idea of aggressive practice, in which are included harassment, coercion. physical force and undue influence.22The option of the Brazilian legislator was to consider consumer harassment as the gender of all aggressive commercial practices23that limit the freedom of consumer choice. 

In this way, in the PLS 281, 2012, a new consumer right was created, prohibiting any kind of discrimination and consumer harassment, strengthening freedom of choice.24 Also in the PLS 283, 2012, there are standard typifying the consumer harassment and unfair commercial practices.25 The recognition of the special vulnerability of these consumer groups (vulnerable consumers) is an important step and, as we have seen, coincides with the UN guidelines. It is expected that the reform of the Brazilian Consumer Code will soon be approved.

The UN guidelines still mention consumer vulnerability in financial services and in international relations, especially in e-commerce and when a tourist, consolidating the principle that consumer law in the virtual world or online must be at least the same proved to consumers in the offline world, equal rights of paramount importance. Let us see the second principle of the Sofia Declaration.


2.Principle of the most favorable protection and its impact in Brazil

This principle applies especially in cross-border cases of conflicts of law. We can affirm that this is the ‘Brazilian Model’ of international protection of consumers. The most favorable protection was suggested as connecting factor at the Part II of the CIDIP VII26and also at the CT 7 in Mercosur by the Brazilian Government. To develop an international consumer protection, it is really necessary to think of applying that to ensure greater protection of their rights and not the one in a written contract of adhesion in English by the creator of digital service or product purchased at a distance. 

The European Union has consolidated this principle in Art. 5 of the former Rome Convention, currently the Rome I Regulation, stating that it should apply the law chosen by the parties only if it were more favorable than the mandatory articles of the country's consumer protection of residence of consumers.27 This rule of 'favor' does not existed in Brazil yet, but the Commission responsible for updating the Brazilian Consumer Code accepted my suggestion to include this reference to the most favorable consumer protection. This concern for international consumer protection moved the Brazilian Parliament28 and in the substitutionary Bill of Senator Ricardo Ferraço it was possible to suggest a new Art. 9 of  the Introductory Law, with special Articles for consumer protection (Art. 9 B and 9 C). The suggestion applies only to consumers in the shape of individuals, as has been the trend around the world29 and in Brazilian jurisprudence.30 The rules for the international protection of consumers, in PL 3414.2015 (former PLS 281,2012) pending before the House of Deputies, are as follows:

Art. 9. The obligations, except for specific cases provided by law, shall be governed by the law of the country where they were established. 

[..]

Art. 9 ° -B. The international consumption contract, understood as the one carried out between a natural consumer person and a supplier of goods and services whose establishment is located in a country other than that of the consumer's domicile shall be governed by the celebration of the place of law or, if executed in Brazil, by Brazilian law, since more favorable to consumer.

§ 1. If the contract is preceded by any negotiations or marketing by the supplier or its representatives, addressed to Brazil and it held, in particular sending advertising, correspondence, e- mails, commercial messages, invitations, prizes or offers, mandatory provisions of Brazilian law will apply, since more favorable to consumers.

§ 2. Contracts for international travel packages or package tours involving tour groups or hotel and tourism services, fulfillment outside of Brazil, contracted with tour agencies and operators located in Brazil, will be governed by Brazilian law.

Art. 9 ° -C. The law applicable to non-contractual obligations, if none of the parties has domicile or an establishment in the country where the accident occurs, damage, fact or tort, will be the law of the place where its effects are felt. [... ]

The Brazilian Parliament has not accepted my initial suggestion to established as connecting factor the consumer's domicile (as presumably the most favorable law) and has maintain the traditional connecting factor on place of the celebration of an international contracts (Art. 9), even in a new rule for international consumer contracts (9B), but the idea of the most favorable protection to consumer appears in fine at Art. 9B allowing to use the Brazilian Law. Thus, this new Article excludes the party autonomy (or choice of law by the parties) in consumer contracts, when both consumer and professional are present at the place of celebration. This Article has traditional connecting factors, but it is still a strong advance on Brazilian Private International Law. The many references in this article designed to the most favorable law are positive and demonstrate the growing importance of this principle in the future of Brazilian law, such as the Brazilian suggestion of the OAS CIDIP VII- Part II[ See my suggestion for this CIDIP VII, accepted by the Brazilian government, in MARQUES, Claudia Lima. A proteção do consumidor: aspectos de direito privado regional e geral, in XXVII Curso de Derecho Internacional-OEA/CIJ,, Ed Secretariat General- Secretariat Asuntos of Legal , Washington, 2001, p. 657-780.] and CT 7 of MERCOSUR.

For international contracts of e-commerce or distance contracting, a special article drafted by the Jurists Committee, allowing freedom of choice - because in such cases it is difficult to establish which is the law of celebration -is present in Article 101 of the Brazilian Consumer Code, to know:

‘Art. 101... 

§ 2. To the conflicts arising from the supply international distance, applies to consumer's domicile law, or, if more favorable to this, the state standard chosen by the parties, provided, in any event, the consumer access to justice. ( NR ) 


It is interesting to note that this model of the most favorable protection was followed by the new Law in Panamá, but not in Argentina. Let’s look at the models of consumer protection for international consumer contracts in the world and the efforts of the ILA to enhance the number of states that have include the consumer protection at its Private International Law national legislations.


III.Models of consumer protection in international consumer contracts and the ILA’s Johannesburg Resolution

After the work at the Sofia Declaration, the ILA’s Committee on International Protection of consumers has followed the efforts of Consumers International and the UNCTAD to revise the UN Guidelines on Consumer Protection. The 2015 Revision of the UNGCP has no suggestion in conflict of law rules, so the Committee has decided to make a contribution analyzing all the models used by national and international actors on respect of the law applicable for international consumer contracts. The Johannesburg ILA Resolution is a consolidation of these studies and it has two parts, one about the Models and other in form of a recommendation.


A.The Johannesburg Recommendation on international protection of consumers

The 77th Conference of the International Law Association held in Johannesburg, South Africa, on 7 to 11 August 2016, having considered the Report on the Role of international Law on contemporary consumer protection and the book prepared by the Committee, as well as its survey of the consumer protection laws and regulations worldwide, has recognized the emergence of the international dimension in consumer protection, the role of international law in helping to develop more equitable standards of consumer protection, and the need to take the consumer into account in international trade regulation. Acknowledging that individuals are usually the weaker parties in consumer contracts in general, and in cross-border contracts in particular, most notably with respect to the choice of applicable law and jurisdiction and concerned about the lack of universal models to protect consumers in cross-border contracts has approved the ILA Resolution No. 1/2016.   

Inspired by the Revision of the UN Guidelines for Consumer Protection in 2015 and desiring to contribute to the debate on the creation of fair and equitable principles for international consumer protection, the International Law Association has adopted the Johannesburg Recommendations. 

There are four recommendations approved at the ILA’s Resolution 1/2016, as follows:

1、CONSIDERING that consumers as natural persons acting outside of their professions or trade do not have expert knowledge, and are in an unequal bargaining position making the application of the rules on commercial transaction (which often includes lex mercatoria) unfair to them; STRESSING the differences between consumer contracts and other business contracts and the need for special rules to protect consumers not only nationally but also in international contracts and with respect to dispute resolution,

RECOMMENDS acknowledgement of the protection of consumers as weaker parties as a principle in national and international transactions,


2、NOTING that several international law initiatives have been undertaken with respect to the harmonization of laws relating to cross-border consumer transactions by different international bodies,  which have produced conventions, model laws, and legislative guides; ALSO NOTING that the 2015 Revision of the UN Guidelines for Consumer Protection has acknowledged the international dimensions of consumer protection; WELCOMING the efforts of the Hague Conference on Private International Law concerning the necessity to regulate international tourism,

RECOMMENDS the adoption of special rules on applicable law and jurisdiction for cross-border consumer protection. 


3、AWARE that foreign tourists demand special protection related to their consumer rights, especially when they are away from their place of habitual residence, culture, and language; ACKNOWLEDGING the efforts made at the UN World Tourism Organization to enhance the protection of tourists in case of emergency situations and the efforts of the Hague Conference on Private International Law on the field, 

RECOMMENDS more international co-operation on consumer protection, especially in the field of international tourism.


4、CONSIDERING the recent efforts to update national and regional laws, regulating international consumer contracts (especially in the EU, Mercosur, OEA, Japan, China, Korea, Brazil, Argentina, Panamá, Dominican Republic), 

RECOMMENDS that States consider best practices on international protection of consumers, and to that end also RECOMMENDS the use of the models set out in Guidelines on the Best Practices on the Law Applicable to International Protection of Consumers, with the aim of helping the development of fair and equitable legal standards for all consumers in the world, without discrimination. 


This Johannesburg ILA Resolution is a consolidation of the principles of the Sofia Declaration beginning with the principle of vulnerability and reinforcing the need to adopt special rules on applicable law and jurisdiction to protect consumers in a globalized world. The studies of the committee have concluded the need also to more international co-operation, as proposed by the Brazilian government at the Hague Conference on Private International Law on the preparation of a global network to protect international tourists.32The final Johannesburg recommendation deals with the best practices and models already existing in the world in international consumer protection concerning the applicable law to consumer contracts.


B. Johannesburg ‘Best Practices on International Protection of Consumers’ in law applicable

During the last 4 years the ILA’s Committee on International Protection of Consumers has study the models and practices of the States on the protection of consumers in international contracts and select 3 to aid the countries that have not yet legislate on choice of law in cross-border consumer contracts. The Committee has also developed a forth model with parts and ideas of the other 3 current existing models. The work will continue in jurisdiction and the protection of tourists, but the Johannesburg Guidelines is the first result of these studies. 


1.The Johannesburg Models of ‘Framed’ Autonomy’ in conflict of law consumer protection rules

The first Model to mention what conflicts of law for consumer contract is concerned is the Swiss model. The Swiss Law (‘Lois de droit international privé’) from 1987 has a special rule to protect consumers in cross-border consumer contracts. But Article 120 II 33of the 1987 Swiss Private International  Law allow no party autonomy or choice of law by the parties, so the law governing all consumer contracts is the law of the habitual residence of the consumer. This model was considering too strict by the committee in times of digital consumer contracts, although the habitual residence of the consumer can be seeing as a very positive and protective connecting factor. The Committee considered more adapted to the actual complexity of consumer contractual transactions in the world other models allowing a limited or ‘framed’ party autonomy or alternative connecting factors.

Norbert Reich had identified in the European Law what he called framed autonomy principle (framed autonomy),34 that find his debut at the 1980 Rome Convention on the law applicable of international contracts, with a special rule for consumer contracts (Art. 5). This so called ‘European Model’ was considered one of the best practices in the world. As we have seen other models,35 the mentioned model of the European Union, now at Art. 6 of the Rom I Regulation use a substantive comparative approach between the law choose (lex causae) and the mandatory rules of the law of the country of habitual residence of the consumer, allowing the private autonomy in conflict of laws but with a protective framework. 36 

In comparative law, besides the mentioned model of the European Union, with the use of mandatory provisions on immediate application, the Committee has studied other models in the world, like the Brazilian Model. In Brazil, it was the Federal Constitution of 1988 that determined to prepare a Consumer Protection Code (Art. 48 of the Acts and Constitutional Provisions from the Constitution of 1988). The Law 8.078 of 11 September 1990, known as Consumer Protection Code  has completed, in March 2016, 25 years in force37and is now in a Reform process.38As we have mention before, inspired by the suggestions made by the Brazilian government at the OAS ‘CIDIP VII on consumer protection’ process39 the Brazilian Parliament has incorporate a special conflicts of law rule at the consumer code, consolidating the model of the ‘most favorable law to the consumer’ for international distance contracts40on the Brazilian Consumer Code and adapting the Private International Act (‘Lei de introdução’).41

To mention is also as one of the most interesting practices is the Chinese model.42The Chinese law of 2010 (the ‘Law of Application of Law for Foreign-related Civil Relations of the People's Republic of China’, LALFCR), entered into force in 2011 and, among its 52 articles, it brings the art. 42 as a special article for consumer contracts. The provision of the art. 42 of the Chinese law LALFC43ensures the applicability of the laws of the consumer’s domicile, but the consumers – and only they- can chose the law of the contract’s place of performance or this shall be applied when the supplier/provider has no significant operations in the country of residence of the consumer, like e-commerce. The rule translated by Prof. Dr. Wei Dan goes: 

Article 42. The laws at the habitual residence of consumers shall apply to consumer contracts; if a consumer chooses the applicable laws at the locality of the provision of goods or services or an operator has no relevant business operations at the habitual residence of the consumer, the laws at the locality of the provision of goods or services shall apply.44

The interesting aspect about the Chinese model is considering the consumer’s habitual residence as the main connection (certainly the most favorable) and permitting the autonomy of the will/freedom of choice only to the consumer, and limitedly to the local law of the celebration of the contract, like the Brazilian law, for instance.

The Chinese law also proves to be wise when excluding the applicability of the habitual residence law when the supplier has no business operations in the consumer’s country of residence, similar to the tourist cases.45

In Latin America, the Argentine model is the most important and has also influenced the Brazilian parliament in a positive manner, demonstrating the necessity of a special consumer protection provision. The Article of the new Civil and Commercial Code of Argentina (Law n. 26.994, 7 October 2014) establishes the consumer's domestic law as a basis, but only for cases of passive consumer, otherwise the law of the place of performance or the place of celebration applies. The Article, deeply influenced by the Rome Convention (1980) in its first part, is as follows: 

Article 2655. – Applicable Law. The consumer contracts are determined by the Member State Law of the place of domicile of the consumer in the following cases: a. if the conclusion of the contract was preceded by an offer, publicity or activity fulfilled at the State of the consumer’s dwelling place and if he/she complied all the necessary acts for the conclusion of the contract; b. if the supplier received/accepted the order at the State of the consumer’s domicile; c. if the consumer was induced by the supplier to travel to a foreign State aiming to complete the order; d. if the travel contracts, with a global price, include combined installments of transportation and accommodation. To cases not included in this article, the consumer contracts are determined by the law of the country of place of performance. In case of  it not being possible to determine the place of fulfillment, the contract rests determined by the law of the place of celebration.

Besides the Argentinian model, particularly similar to the European model, two new legislations have recently been elaborated. In the Dominican Republic, the new Law n. 544, known as ‘Ley de Derecho Internacional Privado’ (International Private Law Legislation), dated from 15 October 2014; brought a new consumers special protection standard, which allows the choice of the applicable law, but restricts its effects to the chosen law, never excluding the standards foreseen on the habitual residence law for consumers protection. The considered enigmatic excerpt from the art. 63, Law n. 544:

 The contracts celebrated by consumers are Articled by the law of the country of habitual activity, in absence of election by the parties shall be applied the law of the consumer habitual residence. Paragraph. On consumer contracts celebrated by the aspects of this article, the applicable law election by the parties may lessen/diminish the consumer protection standards foreseen on the law of their habitual residence, on those cases which the contracting party has a business establishment in the mentioned country or at any rate had directed its commercial activities to this country.47

Panama published the Law n. 7/2014, ‘Codigo de Derecho Internacional Privado’ (International Law Code), considered a paramount general principle on consumer protection:

Art. 8: The international community's fundamental principles are part of the judges’ rules of application, like the supremacy of interests of the children and consumers which prevail over all other aspects;… the protection of the weak, the international obligation erga omnes and the rights derived from ius cogens, the environmental responsibility and other universal law principles applicable.’). Article 95 provides: ‘The consumer contracts are ruled by the law of the place of transaction. The election by the consumers may be invoked on their domicile jurisdiction, the place of contract fulfillment or the one that is most favorable, in regard to the supremacy of consumer interest principle. The most favorable law stands for the most adequate law to repair and protect the interests of the consumer. 

This model is very interesting, for it establishes the most favorable law as the most favorable and suitable approach to repair and protect the interests of the consumer; certainly an important model to be followed.

The text of the Johannesburg Guidelines uses all these three models and propose a mixt model, prepared by the Committee.


2.The Text of the Johannesburg Guidelines on the Best Practices on International Protection of Consumers 


GUIDELINES ON THE BEST PRACTICES ON THE LAW APPLICABLE TO INTERNATIONAL PROTECTION OF CONSUMERS 

Considering the 2012 ILA’s Sofia Statement on the Development of International Principles on Consumer Protection acknowledging that ‘It is desirable to develop standards and to apply rules of private international law that entitle consumers to take advantage of the most favorable consumer protection’;

The models reflecting the best practices on applicable law to international consumer contracts, selected by the Committee on International Protection of Consumers, are as follows: 

Model Rule 1: Limiting the Chosen Law by Reference to Mandatory Rules

Article 1. Consumer Contracts

1.An international consumer contract shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

a)pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

b)by any means, directs such activities to that country or to several countries including that country, and in both cases, the contract falls within the scope of such activities.48

2.If the requirements in points (a) or (b) of paragraph 1 are not fulfilled, the law applicable to a contract between a consumer and a professional shall be governed by the law chosen by the parties, or in the absence of a choice, by the law of the country where the goods or services were agreed to be supplied.49

3.Where paragraph 2 above applies, a choice of law may not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of his habitual residence.50


Model Rule 2: Party Autonomy Limited to Choose of the Law Most Favorable to Consumers

Article 1. Consumer Contracts

1.An international consumer contract shall be governed by the law of the habitual residence or domicile of the consumer or by the law chosen by the parties, provided that the latter is more favorable to the consumer. 


2.The parties may choose between the law of the habitual resident or domicile of the consumer, of the place of the conclusion of the contract, of the place of performance and of the main office of the professional or provider of goods or services.


3.Under paragraph 1 above, the law more favorable to the consumer means the law that, viewed overall when the contract was made, assures the remedies or the redress more protective of the consumer’s interests. 


Model Rule 3: Limiting Party Autonomy by Reference to Connecting Factors 

Article 1. Consumer Contracts

1. The law of performance, meaning the law of the place where the goods or services were agreed to be supplied, shall govern an international consumer contract, if either (i) the consumer expressly chooses this law or (ii) the supplier/professional has under the contract no duty to undertake any business activities, related to the goods or services to be supplied, in the country of the consumer’s habitual residence.

2. Save where paragraph 1 applied, international consumer contracts shall be governed by the law of the habitual residence of the consumer.


Model Rule 4 of the Committee

Article 1. Consumer Contracts

1.An international consumer contract shall be governed by the law of the country where the consumer has his/her habitual residence, provided that the supplier or professional:

a.pursues his/her commercial or professional activities in the country where the consumer has his/her habitual residence, or

b.by any means, directs such activities to that country or to several countries including that country, and in both cases, the contract falls within the scope of such activities. 51 

2. If the requirements in points (a) or (b) of paragraph 1 are not fulfilled, the law applicable to a contract between a consumer and a professional shall be the law chosen by the parties and in absence of choice, the law of the country where the goods or services were agreed to be supplied. 52

3. Where paragraph 2 above applies, a choice of law may not have the result of depriving the consumer of the benefit of the law of habitual residence where that law is more favorable to the consumer.[ Adaptation of the Brazilian Model.] The law more favorable to the consumer means the law that, viewed overall when the contract was made, assures the remedies or redress more protective of the consumer’s interests. 53


IV.Final Remarks

These ILA’s Recommendations and Guidelines on the Best Practices on the Law Applicable to International Consumer Contracts aim to be a contribution to debate on the international protection of consumers. We hope also the countries now willing to legislate on cross-border consumer contracts can find in the Johannesburg Resolution 1/2016 guidance and ideas for its future legislation with a positive impact in consumer protection on the national and international markets.

Although not regulating conflicts of law, the 2015 Reform of the UN Guidelines clarified the theme, specifically mentioning the necessity of concern from States regarding the redress of damages, e-commerce and new consumer dispute settlement in the international scenario, 

including problems in the international financial system, and the international and cross-border aspects of tourism.54

As we could see the ILA’s Committee on International Protection of Consumers act as observer at the International For and try to create also soft law (Guidelines and Declarations) about international subjects. The Committee on International Protection of Consumers wants for example to help the Hague Conference on Private International Law to develop a more safe and non-discriminative environment for the international tourists.55The Hague Conference is working to establish a feasibility study on the Draft Convention on Co-Operation and Access to Justice for International Tourists to be present at March 2018.56The IACL has until today acted more as an academic association - organizing congress and events, sharing valuable information and helping by capacity building-, but since the creation of the IGE on Consumer Policy and Law has acted also as observer. Perhaps the role of the IACL could also –after 25 Years existence- change to embrace also the active participation at the development of soft law in consumer protection. So, together IACL and ILA could think about the need to enhance the international protection of consumers. Let’s hope the 16th IACL Conference at UFRGS, in Porto Alegre, Brazil can help to disseminate this soft law and the planning of new joint efforts on the international dimension of consumer law and policy. 


References

Araujo, Nádia de. A proteção do consumidor nos contratos internacionais: necessidade de regulamentação específica se torna realidade no Brasil e demais países do Mercosul, in Revista de Direito do Consumidor, vol. 100, Jul - Ago / 2015, p. 451 – 71.

Benjamin, Antonio Herman; Marques, Claudia Lima; Bessa, Leonardo Roscoe. Manual de direito do consumidor. 6 ed (São Paulo: Ed. RT, 2014), p. 34 ff.

Galindo, Patricia. Droit de la protection du consommateur au Québec et au Brésil - Une analyse comparée, (Montréal: IEIM, 2016), p. 323 ff.

Howels, Geraint. Agressive Commercial Practices. In: Howels Geraint; Micklitz, Hans; Wilhelmsson Thomas. European fair-trading law. The unfair commercial practices directive. (Hampshire: Ashgate, 2006).

INTERNATIONAL LAW ASSOCIATION, Report of the Seventy-Fourth Conference – The Hague (London, 2010).

Lorenzetti, Ricardo Luis. Teoría de la decisión judicial: derecho Basics. (Buenos Aires: Rubinzal - Culzoni , 2006). p . 455 ff.

Klaus . European Consumer Law, (Cambridge: Intersentia, 2014).

Marques, Claudia Lima. Algumas observações sobre a pessoa no mercado e a proteção dos vulneráveis no Direito Privado in Grundman Stefan, Mendes Gilmar, Marques Claudia Lima, Baldus Christian and Malheiros Manuel. Direito Privado, Constituição e Fronteiras.  2. Ed., (São Paulo: RT, 2014), p. 287-331.

— A proteção do consumidor: aspectos de direito privado regional e geral, in XXVII Curso de Derecho Internacional-OEA/CIJ,, Ed Secretariat General- Secretariat Asuntos of Legal , Washington, 2001.

— ‘Brésil - Rapport national’, in: D. P. Fernández Arroyo D. Fernandez Arroyo (Ed.), Consumer Protection in International Private Relationships, (CEDEP: Asunción, 2010), p. 47 ff.

— Confiança no comércio eletrônico e a proteção do consumidor, (São Paulo: RT: 2004).

— Consumer Protection in Private International Law Articles: the need for an Interamerican Convention on the law applicable to some consumer contracts and consumer transactions, in T. Bourgoignie (Dir.) Regards croisés sur les enjeux contemporains du droit de la consommation , Blais (2006 ), p. 145 ss.

— ‘Comercio electrónico de consumo internacional: modelos de aplicación de la ley más favorable al consumidor y del foro más conveniente.’ in: Dreyzin de Klor, Adriana (Dir.). Los Derechos del Consumidor. Visión Internacional. Una Mirada Interna. (Buenos Aires: Zavalia, 2012), p. 151 ff.

— Esforços para incluir o tema da proteção do turista na Agenda de Trabalho da Conferência de Haia e a proposta brasileira de ‘Convenção de Cooperação em Matéria de Proteção dos Visitantes e Turistas Estrangeiros’, in Revista de Direito do Consumidor, vol. 90, Nov - Dec / 2013, p. 39 - 64.

— Towards a global approach to protect foreign tourists: building governance through a new cooperation net in consumer and tourist issues. In: Sierraltra, Anibal; Marques, Claudia Lima (orgs.). Derecho internacional, mundialización y gobernanza. (Assumption: Cedep, 2012). p. 425-55.

— 25 Years to Celebrate: Horizons of the 1990’s Brazilian Consumer Protection Code and new horizons, especially on international protection of consumers, in Marques Claudia Lima; Dan Wei. Consumer Law and Socioeconomic Development: National and International Dimensions, (Springer: Heidelberg, 2017) (not yet published).

Marques, Claudia Lima and Bruno, Mirgem. O Novo Direito Privado e a Proteção dos Vulneráveis, 2nd. Ed. (São Paulo: Ed. RT, 2014), p. 85 ff.

Marques, Claudia Lima and Beate, Gsell. Novas Tendências do direito do consumidor: Rede Alemanha-Brasil de Pesquisas em Direito do Consumidor, Ed (São Paulo: Ed. RT, 2015), p. 46-87.

Marques Claudia Lima and Lima, Clarissa Costa de. Extratos dos substitutivos dos Projetos de Lei 281, 282 e 283 de 2012 authorship Senator Ricardo Ferraço, in Revista de Direito do Consumidor, vol. 90, Nov - Dez / 2013, p. 265 – 94.

Micklitz, Hans -W. Unfair commercial practices and misleading advertising, in Reich Norbert; Micklitz , Hans- W; Rott , Peter ; Tonner Klaus . European Consumer Law, (Cambridge: Intersentia, 2014),

Reich, Norbert. General Principles of EU Civil Law.  (Cambridge: Intersentia, 2014).

Senado Federal, Atualização do Código de Defesa do Consumidor – Relatório, (Presidência do Senado Federal, Brasília, 2012).

Sodré, Marcelo Gomes. A construção do direito do consumidor. (São Paulo: Atlas, 2009).

Solomon Dennis. Verbrauchervertraege, in Ferrari Franco- Leible Stefan (Hrsg.). Ein neues Internationales Vertragsrecht für Europa, JVV, 2007, p. 11 e seg. 

Wei Dan. Breves Notas sobre a Aplicação da Nova Lei do Consumidor na China: Novos Direitos e Novas Responsabilidades, in Revista de Direito do Consumidor, vol. 103 (2015).

— Tourist-consumer protection in Macau SAR of China as a world tourism destination, in Revista de Direito do Consumidor, vol. 92 (2014)

Yu Ying. Chinese Approaches to Reform Consumer Protection law: Substantive Law and Conflict Law, in Revista de Direito do Consumidor, vol. 103 (2016).



*Updated version of an article published at the ‘Boletim da Sociedade Brasileira de Direito Internacional – Edição Comemorativa de 100 anos’, 100 Years Special Edition, 2017, with the title: New trends on international protection of consumers. The author thanks Prof.  Dr. Wagner Menezes for the authorization to publish at the IACL and PHD Candidate Tatiana Squeff Cardoso for the corrections and exchange of materials. 

**Professor at the Federal University of Rio Grande do Sul, UFRGS (Porto Alegre, Brazil), Chair of the Committee of International Protection of Consumers, International Law Association (London). Former President of Brasilcon (Brasília).Chief Editor of the ‘Revista de Direito do Consumidor’, Thomson Reuters (São Paulo). Doctor iura utriusque (Heidelberg), LL.M. (Tübingen), LBJ (UFRGS).   

1 See the original version, A/RES/39/248, 16 April 1985 and its importance in the developing countries, in the work of SODRÉ, Marcelo Gomes. A construção do direito do consumidor. (São Paulo: Atlas, 2009).

2 The expression used is ‘vulnerable and disadvantage consumers’ (III, .5), the expression hyper-vulnerable is Antonio Herman Benjamin, initially in lectures and, later, in the decision: 

The ethical-political category, and also legal, of vulnerable subjects includes a subgroup of subjects hyper-vulnerable, [...] When you protect the hyper-vulnerable, strictly speaking ends benefited is truly the society itself, as expected respect for the collective social inclusion pact imperative, which is expensive, not for his patrimonial facet, but precisely by embracing the intangible and humanist dimension of the principles of human dignity and solidarity. Ensure judicial inclusion (that is, recognize the legitimacy to Act) of these people hyper-vulnerable, including of the intermediaries who is up to represent them, not to leave any rough justice for lack of rights spokesman offended. (STJ, REsp 931,513/RS, p/Judgment Minister Herman Benjamin, first section, tried in 25 November 2009, Laurence 27 September 2010). 

See Marques Claudia Lima. Algumas observações sobre a pessoa no mercado e a proteção dos vulneráveis no Direito Privado in Grundman Stefan, Mendes Gilmar, Marques Claudia Lima, Baldus Christian and Malheiros Manuel. Direito Privado, Constituição e Fronteiras.  2. Ed., (São Paulo: RT, 2014), p. 287-331.

3 See http://www.ila-hq.org/en/news/index.cfm/nid/2F35999B-ADFA-4719-9DB11D5CECBAD1A8 .

4 See http://unctad.org/en/Pages/MeetingDetails.aspx?meetingid=1060 .

5 See Marques Claudia Lima. Towards a global approach to protect foreign tourists: building governance through a new cooperation net in consumer and tourist issues. In: Sierraltra, Anibal; Marques, Claudia Lima (orgs.). Derecho internacional, mundialización y gobernanza. (Assumption: Cedep, 2012). p. 425-55.

6 International Law Association Report of the Seventy-Fourth Conference – The Hague (London, 2010), 259. (www.ila-hq.or/en/committees/index.cfm/cid/1030).

7 Resolution ILA 4/2012 75° ILA Conference, Sofía, Bulgaria, from 26 to 30 August 2012. 

8 The Amsterdam Statement of the Committee on International Protection of consumers is as follow: 

1. Consumer protection must be a part of the international agenda of both public and private international law, taking account of the fact that consumers are the weaker parties. 2. Therefore, the consumers have the right to the application of minimum mandatory rules and should be able to take advantage of the most favorable law.  3. Considering the consequences of the global financial crisis, triggered by inadequate regulation of consumer credit, there is a need to ensure effective, fair and transparent regulation of consumer financial services which recognizes the central role for consumers throughout the world. (in INTERNATIONAL LAW ASSOCIATION, Report of the Seventy-Fourth Conference – The Hague (London, 2010), p.259.

9 See the Rio de Janeiro findings the first Discussion Paper at www.ila-hq.or/en/committees/index.cfm/cid/1030

10 See Discussion Report available at  www.ila-hq.or/en/committees/index.cfm/cid/1030 .

11 See ILA Resolution, http://www.ila-hq.org/en/news/index.cfm/nid/08039ADC-FF64-4E58-8400C6F015DAD404. See also the Report, http://www.ila-hq.org/en/committees/draft-committee-reports-johannesburg-2016.cfm . 

12  See Marques Claudia Lima. 25 Years to Celebrate: Horizons of the 1990’s Brazilian Consumer Protection Code and new horizons, especially on international protection of consumers, in Marques Claudia Lima; Dan Wei. Consumer Law and Socioeconomic Development: National and International Dimensions, (Springer: Heidelberg, 2017) (not yet published).

13 See: Conference Resolution Sofia 2012. Available in: <http://www.ila-hq.org/en/committees/index.cfm/cid / 1030>. Access: 02 September 2012.

14 See  http://www.ila-hq.org/en/committees/index.cfm/cid/1030 .

15 See http://www.senado.gov.br/senado/codconsumidor/default.asp. 

16 Senado Federal, Atualização do Código de Defesa do Consumidor – Relatório, (Presidência do Senado Federal, Brasília, 2012), p. 139 and p.140.

17See on the principle for debilis, LORENZETTI, Ricardo Luis. Teoría de la decisión judicial: derecho Basics. (Buenos Aires: Rubinzal - Culzoni , 2006). p. 455 ff.

18 See the principle of protection of the weaker party’, in Reich Norbert, General Principles of EU Civil Law.  (Cambridge: Intersentia, 2014), p. 37ff.

19 See on the demand for real equality of unequal and most vulnerable among them, Marques Claudia Lima; Mirgem Bruno. The O novo Direito Privado e a Proteção dos vulneráveis, 2nd. Ed. (São Paulo: Ed. RT, 2014), p. 85 ff.

20 This paragraph is based on the study, Marques, Claudia Lima and Gsell Beate. Novas Tendências do direito do consumidor: Rede Alemanha-Brasil de Pesquisas em Direito do Consumidor, Ed (São Paulo: Ed. RT, 2015), p. 46-87.

21 See Galindo Patricia. Droit de la protection du consommateur au Québec et au Brésil - Une analyse comparée, (Montréal: IEIM, 2016), p. 323 ff.

22 Micklitz Hans -W. Unfair commercial practices and misleading advertising, in Reich Norbert; Micklitz , Hans- W; ROTT , Peter ; Tonner Klaus . European Consumer Law, (Cambridge: Intersentia, 2014), p. 113, states que such a standard is likewise the general clause.

23 Note that the aggressive commercial policy expression was not known in many European countries before the Directive 2005, as reported Howels Geraint. Agressive Commercial Practices. In: Howels Geraint; Micklitz, Hans; Wilhelmsson Thomas. European fair-trading law. The unfair commercial practices directive. (Hampshire: Ashgate, 2006) p. 167-94, p. 168.

24 The bill text is as follow:’ Art. 6º.. XII – the freedom of choice, especially due to new technologies and data networks, prohibited any kind of discrimination and consumer harassment;’.

25 The text is as follows:  ‘[Art. 54-C] It is prohibited, explicitly or implicitly, in consumer credit offering, advertising or not […] IV – harass or pressure the consumer to hire the product supply, service or credit, including the distance, electronically or by telephone, especially in case of elderly consumers, illiterate, sick or high state of vulnerability or if the purchase involved prize.;’

26 Marques, Claudia Lima. Confiança no comércio eletrônico e a proteção do consumidor, (São Paulo: RT: 2004), p. 3003 ff.

27 Solomon Dennis. Verbrauchervertraege, in Ferrari Franco- Leible Stefan (Hrsg.). Ein neues Internationales Vertragsrecht für Europa, JVV, 2007, p. 11 e seg. And Reich Norbert ; Micklitz , Hans- W; Rott Peter ; Tonner Klaus . European Consumer Law, (Cambridge: Intersentia, 2014), p. 290 ff.

28 As teaches Nadia de Araújo, ‘Opinion No. 243/2014 expressly mention the need to also update the Articles governing international trade, which were provided for in art. 9 of LINDB. According to Senator Ricardo Ferraço, there was no way to ignore, the substitute Bill proposed the PLS 281, the new international dimension of consumption, otherwise it will not prepare the Consumer Code and the Brazilian legislation for the coming years.’ ARAUJO, Nadia. A proteção do consumidor nos contratos internacionais: necessidade de regulamentação específica se torna realidade no Brasil e demais países do Mercosul, in Revista de Direito do Consumidor, vol. 100, Jul - Aug 2015, p. 451-71.

29 See Marques Claudia Lima. Consumer Protection in Private International Law Articles: the need for an Interamerican Convention on the law applicable to some consumer contracts and consumer transactions, in T. Bourgoignie (Dir.) Regards croisés sur les enjeux contemporains du droit de la consummation, Blais (2006 ), p. 145 ss .

30 Thus concludes in Marques Claudia Lima. ‘Brésil - Rapport national’, in: D. P. Fernández Arroyo D. Fernandez Arroyo (Ed.), Consumer Protection in International Private Relationships, (CEDEP: Asunción, 2010), p. 47 ff.

31 See my suggestion for this CIDIP VII, accepted by the Brazilian government, in MARQUES, Claudia Lima. A proteção do consumidor: aspectos de direito privado regional e geral, in XXVII Curso de Derecho Internacional-OEA/CIJ,, Ed Secretariat General- Secretariat Asuntos of Legal , Washington, 2001, p. 657-780.

32 Marques Claudia Lima. Esforços para incluir o tema da proteção do turista na Agenda de Trabalho da Conferência de Haia e a proposta brasileira de ‘Convenção de Cooperação em Matéria de Proteção dos Visitantes e Turistas Estrangeiros’, in Revista de Direito do Consumidor, vol. 90, Nov - Dec / 2013, p. 39 - 64.

33 See https://www.admin.ch/opc/fr/classified-compilation/19870312/index.html . The text in French is:

« Art. 120 II. Droit applicable / 2. En particulier / c. Contrats conclus avec des consommateurs. c. Contrats conclus avec des consommateurs.1 Les contrats portant sur une prestation de consommation courante destinée à un usage personnel ou familial du consommateur et qui n'est pas en rapport avec l'activité professionnelle ou commerciale du consommateur sont régis par le droit de l'Etat de la résidence habituelle du consommateur: a. si le fournisseur a reçu la commande dans cet Etat; b. si la conclusion du contrat a été précédée dans cet Etat d'une offre ou d'une publicité et que le consommateur y a accompli les actes nécessaires à la conclusion du contrat, ou c. si le consommateur a été incité par son fournisseur à se rendre dans un Etat étranger aux fins d'y passer la commande. 2 L'élection de droit est exclue. »

34 Reich Norbert, General Principles of EU Civil Law. (Cambridge: Intersentia, 2014), p. 48 ss.

35 See Marques Claudia Lima. ‘Comercio electrónico de consumo internacional: modelos de aplicación de la ley más favorable al consumidor y del foro más conveniente.’ in: DREYZIN DE KLOR, Adriana (Dir.). Los Derechos del Consumidor. Visión Internacional. Una Mirada Interna. (Buenos Aires: Zavalia, 2012), p. 151 ff.

36 See Marques Claudia Lima. ‘Comercio electrónico de consumo internacional: modelos de aplicación de la ley más favorable al consumidor y del foro más conveniente.’ in: DREYZIN DE KLOR, Adriana (Dir.). Los Derechos del Consumidor. Visión Internacional. Una Mirada Interna. (Buenos Aires: Zavalia, 2012), p. 151ff.

37 See Benjamin Antonio Herman. Marques Claudia Lima; Bessa Leonardo Roscoe. Manual de direito do consumidor. 6 ed (São Paulo: Ed. RT, 2014), p. 34 ff.

38 See Marques Claudia Lima. LIMA, Clarissa Costa de. Extratos dos substitutivos dos Projetos de Lei 281, 282 e 283 de 2012 authorship Senator Ricardo Ferraço, in Revista de Direito do Consumidor, vol. 90, Nov - Dez / 2013, p. 265 – 94.

39 See Marques Claudia Lima. Consumer Protection in Private International Law Articles: the need for an Interamerican Convention on the law applicable to some consumer contracts and consumer transactions, in T. Bourgoignie (Dir.) Regards croisés sur les enjeux contemporains du droit de la consommation , Blais (2006 ), P. 145ss .

40 See the text proposed: ‘Art. 101 ...  § 2. To the conflicts arising from the supply international distance, applies to consumer's domicile law, or, if more favorable to this, the state standard chosen by the parties, provided, in any event, the consumer access to justice.’  

41 The Bill 3414, 2015 with half sanction has the following rules:

Art. 9. The obligations, except for specific cases provided by law, shall be governed by the law of the country where they were established [..]. Art. 9 ° -B. The international consumption contract, understood as the one carried out between a natural consumer person and a supplier of goods and services whose establishment is located in a country other than that of the consumer's domicile shall be governed by the celebration of the place of law or if executed in Brazil, by Brazilian law, since more favorable to consumer. § 1. If the contract is preceded by any negotiations or marketing by the supplier or its representatives, addressed to Brazil and it held, in particular sending advertising, correspondence, e- mails, commercial messages, invitations, prizes or offers, mandatory provisions of Brazilian law will apply, since more favorable to consumers. § 2. Contracts for international travel packages or package tours involving tour groups or hotel and tourism services, fulfillment outside of Brazil, contracted with tour agencies and operators located in Brazil, will be governed by Brazilian law, Art . 9 ° -C. The law applicable to non-contractual obligations, if none of the parties has domicile or an establishment in the country where the accident occurs, damage, fact or tort, will be the law of the place where its effects are felt. [... ].

42 See, for all the text DAN Wei. Breves Notas sobre a Aplicação da Nova Lei do Consumidor na China: Novos Direitos e Novas Responsabilidades, in Revista de Direito do Consumidor, vol. 103 (2015).

43 Translation by Prof. Dr. Yu Ying: ‘Article 42: Consumer contract shall be governed by the law of the country of the consumers’ habitual residence. The law of the country where the products/commodities and services be supplied should govern the contract, provided that it was chosen by the consumer or there is no related business activities of supplier/professional in the country of the consumer’s habitual residence.’ See her article YING, YU, Chinese Approaches to Reform Consumer Protection law: Substantive Law and Conflict Law, in Revista de Direito do Consumidor, vol. 103 (2016).

44 Dan Wei, Tourist-consumer protection in Macau SAR of China as a world tourism destination, in Revista de Direito do Consumidor, vol. 92 (2014), p. 13 – 24.

45 Affirms Dan Wei, Tourist-consumer protection in Macau SAR of China as a world tourism destination, in Revista de Direito do Consumidor, vol. 92 (2014), p. 13 – 24: 

It can be seen that under Chinese Law on Choice of Law for Foreign-related Civil Relationships, the parties of consumer contract are not allowed to choose the applicable law. Only the consumer is allowed to choose the applicable law and the applicable law to be chosen by the consumer must only be the laws at the locality of the provision of goods or services. To put into other words, for an inter-regional consumer dispute, the laws to be the applied are the laws at the locality of the provision of goods or services chosen by a tourist consumer. If the tourist does not choose any applicable law, the laws at the habitual residence of the tourist will be applied. However, if an operator has no relevant business operations at the habitual residence of the consumer, the laws at the locality of the provision of goods or services will apply.

46 See Benjamin Antônio Herman; Marques Claudia Lima. Relatório-Geral da Comissão de Juristas- Atualização do Código de Defesa do Consumidor. (Brasília: Presidency of the Federal Senate, 2012), p. 65ff.

47 See about the subject, Luciane Klein Viera’s docatorate thesis, at UBA, named ‘Bases para la Armonización Legislativa en Materia de Derecho Aplicable a los Contratos Internacionales con Consumidores en el MERCOSUR, orientadas hacia al reconocimiento de una nueva categoría de consumidor transfronterizo’. And also Araujo, Nádia de. A proteção do consumidor nos contratos internacionais: necessidade de regulamentação específica se torna realidade no Brasil e demais países do Mercosul, in Revista de Direito do Consumidor, vol. 100, Jul - Ago / 2015, p. 451 – 71.

48 Adaptation of the European Model.

49 Adaptation of the Argentinean Law.

50 Adaptation of the European Model.

51 Adaptation of the European Model.

52 Adaptation of the Chinese Model.

53 Adaptation of the Brazilian Model.

54 Adaptation of the Panama Model.

55 The new Guideline of UNGPC is as follows: 

78. Tourism. Member States should ensure that their consumer protection policies are adequate to address the marketing and the provision of goods and services related to tourism, including, but not limited to, travel, traveller accommodation and timeshares. Member States should, in particular, address the cross-border challenges raised by such activity, including enforcement cooperation and information sharing with other Member States, and should also cooperate with the relevant stakeholders in the tourism-travel sector.

56 See Marques Claudia Lima. The Brazilian ‘Draft Convention on Co-operation in Respect of Tourists and Visitors Abroad’ at the Hague Conference and the UN World Tourism Organization’s Draft Convention, in Moreno Rodriguez José; Lima Marques Claudia. Los servicios en el Derecho Internacional Privado – jornadas de la ASADIP 2014, (Porto Alegre: ASADIP, 2014), p. 823-48.

57 Dan Wei, Tourist-consumer protection in Macau SAR of China as a world tourism destination, in Revista de Direito do Consumidor, vol. 92 (2014), p. 13 – 24.





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