(original message) From: Michael Sondow <[EMAIL PROTECTED]> To: Hague Convention list
> Dear co-Hague listers- > > I downloaded the Ausralian government's paper on Dispute Resolution in > Electronic Commerce that Dan Svantesson kindly pointed us to > (http://www.ecommerce.treasury.gov.au/) and have been studying it. The > first thing that caught my attention was the prefatory quote from a > statement by an FTC official: > > "A consumer is not going to purchase a product (online) if he or she > believes that there's no way to get redress if that product is defective > or, indeed, if the product never arrives. The problem is obviously > compounded because of the cross-border nature of transactions and the > fact that buyer and seller often � (are) very far away. And � everyone > agrees on the goal, which is consumers have to feel safe. The question > is how to do it. > Traditionally, of course, the recourse has been to judicial remedies, > administrative and judicial agencies �But as with all things, the > internet forces us to confront the challenge of whether this > traditional way of resolving these issues works in this new environment, > and I think one of the things that we have to do is recognise that the > technology that enables these transactions may also provide for > a new means for resolving them in a quick, efficient and effective > manner that makes the traditional ways of resolving them maybe > second-best alternatives in this new environment. � > �The OECD (in 1999) produced guidelines for consumer protection in > electronic commerce that set a good substantive level of protection. > (The OECD calls) for the development of alternative dispute > resolution, and so really the next step is to say, okay we have got > these protections, how are they going to be translated in a way that > consumers really can make use of them? And that's your task today." > (Andy Pincus, General Counsel, Federal Trade Commission, United States > of America. From an opening address to a forum on Alternative Dispute > Resolution for Consumer Transactions in the Borderless Online > Marketplace, Washington DC, June 2000) > > While I do not disagree with the apparent intention of this statement, > however badly put, it strikes me as disingenuous for a number of > reasons. > > First, Andrew Pincus was the general counsel for the US Department of > Commerce when it was setting up ICANN, the US-approved regulator of the > Internet domain name system (and much else besides). ICANN is a > consorcium - a nice way of saying "monopoly" or "combine" - of > representatives of big-business telcos, network operators, WIPO, and IP > lawfirms that has steadfastly refused to give Internet users such as > consumers any say in its operations. Yet, in spite of ICANN's rejection > of the participation of consumers and other Internet users in its > policy-making, the DoC and its general counsel Andrew Pincus approved > ICANN and gave it sole control of the Internet's root database, which is > to say, the Doc/ICANN can now remove any domain name they want from the > Internet, including those of whole countries (they have done this) as > well as of individuals and entities. This enormous power is presently > wielded without any input whatsoever from Internet users and consumers, > as the direct result of Andrew Pincus and the US DoC denying users and > consumers access to the decision-making process. (There are documents, > including written official statements by Andrew Pincus, to substantiate > this.) > > Secondly, although it is not clear whom Mr. Pincus was addressing, the > statement is apparently made on behalf of the US Federal Trade > Commission. Now, just what has the FTC done until today to ensure that > there is consumer protection in cross-border B2C Internet transactions, > besides provide a room where consumer protection representatives can > meet in Washington? I don't recall a single member of the FTC speaking > out, at any of the Hague Convention meetings I attended, on the dire > need for the protection of consumers' legal rights to be incorporated in > the Hague treaty. On the contrary, the FTC has been, so far as I can > tell, sitting by and allowing international business to lobby the Hague > delegations to keep consumer protection out of the Convention, as it > looks likely will now happen. > > What, in the end, is Mr. Pincus' and the FTC's interest in promoting, or > pretending to promote, alternative dispute resolution on the Internet? > Is it to help consumers in their struggle for some power to offset that > of online entrepreneurs, with their unfair adhesion contracts, or is it > to give business a means of escaping the jurisdiction of courts through > some sham industry self-regulation process like the ADR process (the > "UDRP") of ICANN? The blatant discrepancies between the statement of Mr. > Pincus prefaced to the Australian government's paper, and the actual > actions of the US FTC and DoC, give one legitimate cause to wonder. > > M.S.
