Michael Stolleis, Public Law in Germany: A Historical Introduction from the 16th to the 21st Century, Thomas Dunlap trans, Oxford: Oxford University Press, 2017, 215 pp, hb £45.00.
| Date | 01 January 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12395 |
| Author | Martin Loughlin |
| Published date | 01 January 2019 |
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REVIEWS
Pablo C ort´
es,The Law of Consumer Redress in an Evolving Digital Market:
Upgrading from Alternative to Online Dispute Resolution,NewYork:
Cambridge University Press, 2017, xii +281 pp, hb £85.00.
The evolution of new technologies has changed the purchasing behaviour of
consumers in favour of online transactions, rapidly expanding digital economies
as well as the number of disputes between online consumers and traders. Courts
that were once considered to be the superior mechanism for law enforcement
and redress seem incapable of tackling the need for swift and cost-effective
dispute resolution. The demand for more easily accessible dispute resolution
mechanisms has contributed to the growth of Alternative Dispute Resolu-
tion (ADR) and Online Dispute Resolution (ODR). This has led to the
emergence of a regulatory framework, referred to by Cort´
es as the ‘Law of
Consumer Redress’, in which existing formal and informal processes seek to
deliver compensation and justice for consumers, driven in part by the desire of
policy makers to reduce the pressure on public budgets.
The Law of Consumer Redress is presented as a new sub-field of study.
Indeed, this book represents – at least from a UK perspective – the first com-
prehensive publication on all forms of consumer redress including ADR and
ODR, public enforcement, judicial mechanisms and internal complaint sys-
tems. However, the focus clearly lies on consumer ADR, which is considered
as main pillar of consumer redress, and in particular on the respective EU
regulatory framework consisting of the ADR Directive 2013/11/EU and the
ODR Regulation No 524/2013.
The book, which includes a foreword by Lord Thomas of Cwmgiedd, is
funded by the Nuffield Foundation and is part of Cort´
es’ previous research on
ODR and consumer ADR. Due to the author’s involvement in the drafting
process of the EU framework and various institutions including the European
Commission and the United Nations Commission on International Trade Law
(UNCITRAL), his views on consumer redress might be, as Cort´
es admits
himself in the acknowledgements, ‘a bit biased’. Yet, these experiences increase
the benefits for the reader.
The book pursues three main research questions. Firstly, the book examines
how traditional redress schemes integrate ODR technology into their processes
(chapters one to three). Secondly, it provides an impact assessment of the
regulation in this field on ADR schemes (chapters four to six). In its third part,
the book addresses the design features of redress mechanisms that are essential to
increase access to redress for consumers (chapter seven and eight). In doing so,
Cort´
es takes an ambitious international approach, although the main focus is on
his experiences in the EU and the UK. The study employs a multidisciplinary
approach ranging from doctrinal and normative, to comparative and socio-legal
methods. Certainly, such a multi-jurisdictional approach only allows for rather
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(1) MLR 180–206
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Reviews
general but valuable statements and conclusions at the expense of in-depth
analyses.
The first chapter provides a very rough overview of the role of public
enforcement bodies and pan-European networks. It argues that their role in
improving consumer redress is one of monitoring and ensuring legal compli-
ance, as well as providing collective redress, leaving the provision of individual
redress principally to ADR schemes. The chapter calls for more (cross-border)
cooperation between public enforcement bodies. As the book claims to cover
all forms of consumer redress, one might have hoped for greater detail on the
operating principles of public enforcement bodies.
The study continues by examining the existing ODR landscape and the
obstacles to its growth (chapter two). Cort´
es correctly points out that the
distinction between ODR and ADR has become increasingly blurred as ADR
schemes are increasingly accessible through electronicmeans. The section offer s
examples of the main private and public ODR providers, of which eBay’s
Dispute Resolution Center and private chargeback systems are considered as
exemplary throughout the book. Cort´
es identifies the lack of awareness of
ODR processes and the lack of incentives for traders to engage in them, as well
as the high costs of implementing ODR technologies, as the primary reasons
for the limited success of ODR.
In light of the commonly disproportionate costs of litigation, Cort´
es
narrows down the judicial mechanisms feasible to resolve consumer disputes
to collective actions and small claim procedures (chapter three). As to the
first, the EU encourages a horizontal framework for collective redress– espe-
cially through Commission Recommendation 2013/396/EU. Although the
Commission recommends the use of collective ADR throughout the judicial
process, the book correctly finds that collective redress will likely remain with
the courts rather than shifting to ADR systems. The European Small Claims
Procedure as the second mechanism is rarely used by consumers. This is,
besides all the shortcomings described in this section, caused by the fact that
the procedure only applies to cross-border disputes.
According to Cort´
es, the decreasing role of judicial consumer redress means
that ‘ADR/ODR can offer consumers better redress than the courts’ (241):
‘courts should be seen as a dispute resolution forum of last resort, performing
a supervisory function rather than a default redress option for most consumer
disputes’(89).Inlightofthis,Cort
´
es suggests four pathways of collaboration
between extrajudicial fora and national courts. In addition to the calls for the
use of pre-action and court-annexed ADR as well as cost incentives for using
ADR that are – at least since the Woolf reforms – not new to the debate,
the book argues persuasively for referral mechanisms from ADR bodies to the
courts and a limited possibility of appeals and reviews of ADR decisions. Cort´
es
concludes that ‘these avenues would ensure a better application of consumer
law, leaving the role of . . . clarifying and developing the law to the courts,
while allowing ADR bodies to operate more effectively in the “shadow of
the law”’ (132). While such mechanisms would indeed be an effective tool
to secure the constitutional role of the courts, the latter statement would face
challenges at an international level. In Germany and Austria, for example, the
C2019 The Author. The Modern Law Review C2019 The Moder n Law ReviewLimited.
(2019) 82(1) MLR 180–206 181
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