Le commerce éléctronique et la protection des consommateurs

To the extent that the creation and exploitation of information technology, in particular of the Internet, represents not only a cause and a hallmark of economic globalisation, but also is dependent upon globalized ways and rules of trade, it is particularly revealing to study the impact of electronic commerce on the globalization of economic law. Focussing the examination more specifically on problems of consumer protection will also bring into consideration national public policy thus raising additional issues of policy conflicts, even though, in the context of the Internet, the concept of consumer may not be limited to the ultimate consumer. Assuming that the establishment of specific rules of consumer law is legitimate in itself, the paper seeks to identify the problems which consumer protection raises for globalized electronic commerce by comparing the approaches which the major players in the field, i.e. the USA and the EU, prefer. Therefore, the policy of the EU of relying on the traditional legal instruments of market regulation is contrasted with self-regulation of e-commerce by industry, which is the approach the US favor with respect to both the domestic market and international trade (see the Global Business Dialogue). These preferences are then explained by reference to the prevailing political and economic thought, and they are put in the perspective of the institutional framework existing on both the international level (UNCITRAL) and the national and regional levels respectively. In particular, it is demonstrated that the distribution of federal powers in the USA and the rules on the establishment of an Internal Market by free trade and harmonization of laws in the EU do have a deep impact on the approaches chosen and the results reached. A major conclusion is that none of the systems fully corresponds to the needs of both e-commerce and consumer protection on the Internet. This is so because, first, considerable diversity of rules continues to exist on domestic markets, and, second and more important, because the systems, in particular the system of the EU, are inward~oriented. The EU favors the establishment of the Internal Market, and thus neglects or even discriminates against e-commerce with third countries, an attitude which is patently at odds with the requirements of global e-commerce. This divide is further explained by a closer examination of the specific rules governing transnational e-commerce transac~tions, and of a number of specific problems of e-commerce such as consumer contract law, protection of personal data, treatment of unsolicited information, and conflicts of jurisdiction. The main conclusion is that States may considerably impair global e~commerce simply by failing to establish consistent and uniform systems of e-commerce regulation and consumer protection on the domestic level. Another, no less pessimistic conclusion is that the very reasons that impede satisfactory domestic laws in this field will also block the establishment of a satisfactory international regime of e-commerce and consumer protection. The only hope is that compatible legal standards will gradually develop in the course of globalisation. H.U.