In this thesis we have developed an extensive monographic investigation in search of the concept of ODR (online dispute resolution), which is in constant development in the Comparative Procedural Law work, especially in the area of consumer law in the area of integration of the European Union, with the impulse granted to the matter by the directive 2011/2013 EU and the Regulation 534/2013 EU, and the consequent transposition of these norms to the legal traditions of the Member States.
10 october 2019
Title: Ideas, concepts and dilemmas for the implementation of a national ODR platform for consumption in Chile from the EU perspective.
Author: Rodolfo Marcone Lo Presti
The search to generate a legal framework more and more prone to the consumer within the European single market, has driven the development of community legislation, and harmonization with national laws. Thus, there are great challenges ahead in this regard, especially at the time of protect vulnerable consumers and other collectives, who cannot access the internet to manage their requests and much less hold negotiations for such electronic platforms.
We approach the phenomenon of dematerialization of judicial proceedings and ADR in the research work. The possibilities of a digital justice becomes more than a reality, a necessity. The emergence of artificial intelligence, big data and other information technologies, allow us to envision an intelligent ODR process and integrated to the ACRM typologies on an electronic scale.
The possibility of implementing an ODR platform in Chile to solve consumer issues regarding the defense of the individual interest of consumers, is highly possible, because the country is small, and could overcome the challenge. Let us not forget that Chile since 2017, adapted its Code of Civil Procedure in order to proceed with electronic processing, which is a success, but only affected the materiality of the process and in the field of civil law.
Unfortunately, consumer matters were not affected by such legal reform, which leaves the consumer unprotected, forcing them to litigate in a nineteenth-century way, that is in a written, ritualistic and slow process, in which many times, making use of the “Autotutela” Rule (which is referred to compliance and enforcement powers), the lawsuits are presented by the consumer himself, without the sponsorship of a qualified lawyer, thesis endorsed even by the Constitutional Court in its historic ruling Role No. 4012-2017, so the results tend to be favorable to the companies, which have staff of lawyers, perpetuating a lack of access to justice of the Chilean ordinary consumer, a situation guaranteed by the ruling just mentioned.
Today, with the latest reform of the Chilean Consumer Law of 2018, Law 20.081, free justice will be provided to at least the consumer with economic deficiencies, but nothing is said to improve access to consumer justice, and less to promote ODRs as a novel solution to the lack of access to justice that Chilean consumers suffer in a multi-door system, using ADR methods, which are also undervalued in national regulations and their design as a solution is almost nonexistent. What we propose here is a procedurally electronic system to resolve disputes outside a judicial environment in an ODR scheme for consumers, using the DNA of the European ODR Platform.
We conclude in our thesis that the development of an ODR platform in Chile is possible, taking into account that there is already an embryo of an ODR platform in Chile which is in charge of the National Consumer Service (SERNAC), that have a telematics platform underway, where they receive on average more than three hundred thousand complaints to merchants annually, and 87% of them are made via the internet.
Therefore, we postulate that the implementation of a national ODR platform will improve the national domestic market for consumption. It also would allow Chile to be a leader in online sales for the South American market, and more effective and a efficient access to justice would be promoted, issues which will be required by the international trade treaties that Chile is about to sign as TPP-11.
For all these reasons, we propose at the project a change of view and interpretation to the standards present in Chile, in order to implement the proposal to create an online national platform for alternative resolution of consumer conflicts, within a multi-door system, following the European model, and taking into account some successful cases such as Belgium, especially its BELMED network and the experiences of the UK, although Chilean and European realities are diametrically diverse in this type of subject, the paradigm shift is necessary for the development of a Chilean digital market.
