29 september 2016

Title: 'Comparative analysis of alternative mechanisms for the resolution of consumer disputes in the member countries of the Andean Community of Nations'.

Author: Astrid Lorena Santamaría Díaz

Tutor: Dr. Guillermo Palao Moreno

The economic process of global society today generates an exponential increase in interactions in the market and, with it, the need to regulate the spaces for interaction and their effects on the legal life of consumers. As subjects of constitutional and legal protection in the domestic legal systems of the member countries of the Andean Community of Nations (CAN) they demand a configuration of the legal system that articulates and effectively provides mechanisms for the protection of their rights and economic interests. The present research, therefore, compares alternative methods of dispute resolution (ADR) within the legislation of this sub-region, in order to establish their normative and practical effectiveness as suitable tools for the materialization of consumer rights and guarantees in the member countries, being a particularly relevant subject for commercial law in the market society.

To this end, the content, concept, foundations and characteristics of the three main ADRs, such as mediation, conciliation and arbitration as alternative justice services, are presented, as well as some notions of online dispute resolution (ODR). It also analyses some of the most important elements of consumer law, as well as a number of observations on the most important aspects of international consumer law. And then, a dissertation was made on the lack of regulatory integration within the Andean Community of Nations.

Under the premise of the need for the Andean Parliament to recognize the legal and practical value of alternative justice for dimensions such as those occurring in consumer law, it would give greater merit to the legislative development of ADRs incorporated in consumer administrative complaint processes. And with this, it would generate real strength for the Andean Roundtable on Civil Society Participation for the Defense of Consumer Rights, which is devoid of any usefulness to facilitate access to consumer protection mechanisms. This is related to the supranationality of Community norms as a characteristic element of the Andean legal system, whether in the area of consumer affairs or in any other area, in which, by virtue of these, the Andean integration process generates a kind of protection and regulatory integration that, among other things, makes up the legislative capacity for legal supremacy over national norms in such a way as to enable a much more specific and concrete development within the countries of the Andean Community of Nations.

Although ADR in consumer matters are not properly established as mechanisms in this area within the CAN's legal system, each Member Country has a regulatory development in consumer law that incorporates ADR as a necessary, suitable and expeditious tool to facilitate consumer access to justice in non-jurisdictional settings. In this regard, there are still regulatory gaps in Latin America regarding consumer law ADRs that are limited only to those established in the domestic legal systems of some countries. The CAN, for example, has not developed any integrated normative instrument to give greater impetus to these tools in a coordinated manner between Bolivia, Colombia, Ecuador and Peru. And in the face of the advances made by other legal systems, the subregional bloc that makes up the CAN is markedly sluggish and this constitutes a challenge for this Community whose objective is to promote development and integration as a paradigm of Andean integration.