Derecho del Turismo en las Américas
Hacia a una Protección Global para los Consumidores – Turistas 569 even where distance communication tools are available, other limitations such as language barriers may hamper appropriate resolution of the claim. • A persistence of obstacles to access to justice in cross‑border matters, in particular the cautio judicatum solvi . • An inability to initiate court proceedings beyond the stay in the visited country: Court proceedings may not be available in cases where physical presence is required. Requiring physical presence has a disproportionate impact on tourists, and especially short‑stay tourists. Difficulties are compounded notably by the information gap and language barriers. • An impossibility to continue court proceedings beyond the stay in the visited country: Even if a tourist can initiate proceedings during the stay in the visited country, the potential length of judicial proceedings may prove prohibitive to gain appropriate access to justice. The issue is compounded in situation where proceedings are discontinued in the absence of physical presence at the hearing, and exacerbated where proceedings last longer than a stay permitted by visa conditions, in which case delay can be used strategically. • The unavailability of a small claims procedure tailored for cross‑border cases: Tailored small claims procedures appear particularly desirable in tourism related disputes, which are typically akin to typical consumer claims, in that they are of small value and of little complexity. • The absence of a governmentally funded authorities in charge of helping tourists to access justice: Most States do not have dedicated governmental agencies or bodies charged with assisting tourists to access justice, although some consumer agencies take on a comparable role. However, evenwhere such bodies exist, they are often ill‑equipped to assist appropriately, especially in light of time pressures and language barriers. • The absence of appropriate liaison mechanisms between authorities of the visited country and the country of the tourist: Where tourists seek to complain to a (consumer) body after their return, then these bodies regularly have practical difficulties in liaising with the trader, whether in relation to the facts, or even to commence mediation / conciliation. Moreover, the complex enforcement of any settlement reached would prove a significant deterrent. The suggested Hague Convention on Cooperation and Access to Justice for International Tourists aims to address these difficulties by setting up an international cooperation mechanism between Central Authorities together with provisions on access to justice (in particular cautio judicatum solvi and legal aid)…The suggested Hague Convention on Cooperation and Access to Justice for International Tourists would build on the HCCH’s vast experience in building
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