Student Number: 2010982505

Alternative Dispute ResolutionLLAW 3307

Research Assignment

Transnational B2C E-Disputes: Towards a Global B2C ODR System

Student Number: 2010982505

Student Number: 2010982505

TABLE OF CONTENT

I. INTRODUCTION........................................................................................................................1

II. TRANSNATIONAL E-COMMERCE – THE CHALLENGES................................2

III. THE ADR EXPERIENCE.........................................................................................5

IV. ODR – WHAT IS ALL THE HYPE ABOUT?........................................................6

V. ODR – RECENT TRENDS AND INITIATIVES AROUND THE WORLD.........8

VI. LEGAL OBSTACLES – CAN ODR “DELIVER THE GOODS”?.......................10

A. FUNDING..................................................................................................................................10

B. ENFORCEMENT.......................................................................................................................13

VII. CO-REGULATION – A COMPLEMENTING STRATEGY..............................17

VIII. A GLOBAL B2C ODR SYSTEM – PUTTING THE PIECES TOGETHER...19

IX. CONCLUDING REMARKS – THE FUTURE IS NOW......................................20

X. BIBLIOGRAPHY.....................................................................................................22

BOOKS............................................................................................................................................. 22

ARTICLES AND JOURNALS............................................................................................................22

Others............................................................................................................................................25

Student Number: 2010982505

I. Introduction

In the context of transnational e-commerce dispute resolution, conventional legal solutions based

on localization and territoriality are clearly inappropriate for the purposes of determining issues of

jurisdiction, given the “borderlessness”1 of the Internet. Traditional avenues for redress are also

impractical from a cost-benefit point of view. Various solutions to resolve these issues have been

proffered in the literature pertaining to this area, such as modifying existing laws 2, introducing regulated

online complaint/feedback forms on the business’s website3 and utilizing new technologies4. However,

the instantaneous, ubiquitous and delocalised transnational e-commerce necessitates solutions with

similar qualities, and it will be argued that online dispute resolution (ODR) can mirror the success of

conventional alternate dispute resolution (ADR) employed in the context of international business

transactions to form the bedrock of an inexpensive, expeditious and efficient global dispute resolution

system for transnational e-commerce. The discussion will be confined to business-to-consumer (B2C)

transactions, where the difficulties are the most pronounced. For such a system to be workable, however,

several attendant legal issues such as funding and enforceability will need to be resolved. Also, a project

on a global scale as such will require harmony of legal rules on an international level, as well as an

accreditation scheme to ensure the quality of the ODR providers under this system. International co-

operation is therefore paramount. In light of the recent spate of activity, it appears that such a project,

whether or not in the mould of the model suggested by the author herein, is not merely a pipe dream, but

indeed a real possibility.

In light of the foregoing, part II will sketch the recurring legal challenges that transnational e-

commerce face. Part III will visit the offline success of ADR in the context of international business. Part

1 Dan Jerker B. Svantesson, “Geo-location Technologies and Other Means of Placing Borders on the ‘Borderless’ Internet” (2004) Law papers. Paper 63. <http://epublications.bond.edu.au/law_pubs/63>2 Faye Fangfei Wang, “Obstacles and Solutions to Internet Jurisdiction – A Comparative Analysis of the EU and US laws” (2008) 3(4) J. of Intl. Comm. Law & Tech. 233—241.3 Zheng Teng, “An Effective Dispute Resolution System for Electronic Consumer Contracts” (2007) 23(1) Computer Law & Security Report 42—52.4 Supra Note 1.

0

Student Number: 2010982505

IV and V will introduce ODR and trace its latest developments respectively. Part VI will highlight two

salient legal issues pertaining to ODR, viz, funding and enforcement of ODR resolutions, and suggest

solutions to these issues. Building on the subject of enforcement, Part VII will suggest a model of co-

regulation that the global B2C ODR system should be found upon in order to implement a practical and

workable enforcement system for the purposes of the global B2C ODR system. Part VIII will attempt to

delineate the general structure and modus operandi of the envisioned global B2C ODR system, and

finally, Part IX will conclude with the author’s final thoughts about the future of ODR in resolving cross-

border B2C e-disputes.

II. Transnational E-commerce – the challenges

According to a global survey conducted by The Nielsen Company in November 2007, over 85%

of the world’s online population have used the Internet to make a purchase, and more than 50% of

Internet users are regular online shoppers, making online purchases at least once a month 5. In addition,

according to industry analyst firm Paul Budde Communication, consumers worldwide spend an estimated

$470 billion online annually, with the numbers expected to exceed $1 trillion by 2012 6. Such salient

statistics, as well as the relentless exponential diffusion of the Internet7, reflect the Internet economy’s

truly immense potential. The opportunities that the e-market offers are twin-fold: on one hand, e-

commerce eliminates territorial barriers, enabling businesses to access the global market at significantly

low costs; on the other hand, the sheer size of the e-market stimulates competition, empowering

consumers with greater choice and lower prices. Notwithstanding the obvious benefits, the growth

potential of global e-commerce, particularly transnational high volume low value B2C transactions 8, will

5 Trends in Online Shopping Report: a global Nielsen consumer report (February 2008), available at: http://nz.nielsen.com/news/OnlineShopping.shtml.6 WhosOn, ATG Research Report – European Consumer Views of e-Commerce Buying Behaviour and Trends (September 2009), available at: http://www.atg.com/resource-library/white-papers/ATG-euro-commerce-consumer-survey.pdf.7 World Internet usage has grown a staggering 444.8% since the turn of the millennium (Source: Internet World Stats – Internet Usage Statistics (2010), available at http://www.internetworldstats.com/stats.htm.8 Colin Rule, et al., “Designing a Global Consumer Online Dispute Resolution (ODR) System for Cross-Border Small Value-High Volume Claims – OAS Developments”, (2010) 42 Uniform Commercial Code Law Journal 221—255.

1

Student Number: 2010982505

only be realised if consumers and businesses feel confident that avenues for redress are available in the

event of a dispute. Indeed, there is common consensus that effective transnational consumer e-dispute

resolution and redress mechanisms are crucial to enhancing consumer confidence in international e-

commerce as well as encouraging e-merchants to expand the geographic scope of their offers9.

Traditional outlets, viz, courts and international arbitration procedures, however, are often not

viable options for the vast majority of transnational B2C e-transaction disputes, since the attendant costs,

in terms of both time and money, are often disproportionate to the value of the goods and services in

dispute10. Furthermore, disputes resulting from transnational e-transactions, characterized by Kauffman-

Kohler and Schultz as dematerialised, desocialised and dejudicialised11, are often complicated by difficult

questions of jurisdiction. In particular, the application of the traditional private international law

principles to e-transactions in identifying the competent jurisdiction is problematic, as these principles

tend to produce one of two results: either they point to every country with which a particular transaction

has connections, or indeed any country in the world12 where the website is accessible13; or, the identified

law or jurisdiction “is purely fortuitous, and has no obvious connection with the parties or the substantive

transaction”14. While these issues have propelled international initiatives geared towards modernising the

9 OECD Conference on Empowering E-consumers: Strengthening Consumer Protection in the Internet Economy, Background Report (8-10 December 2009) at 36, available at: http://www.oecd.org/dataoecd/44/13/44047583.pdf (“Consumers should be provided meaningful access to fair and timely alternative dispute resolution and redress without undue cost or burden.”); See also A/CN.9/706 – Note by the Secretariat Accompanying the United Nations Commission on International Trade Law, 43rd Session, “Possible future work on online dispute resolution in cross-border electronic commerce transactions” (New York, 21 June – 9 July, 2010) ¶ 50, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V10/531/00/PDF/V1053100.pdf?OpenElement.10 Fred Galves, “Virtual Justice as Reality: Making the Resolution of E-Commerce Disputes More Convenient, Legitimate, Efficient, and Secure” (2009) Journal of Law, Technology & Policy 1—62 at 4 (noting that the average online transaction is about US$150.00).11 Kauffman-Kohler and Schultz, Online Dispute Resolution: Challenges for Contemporary Justice (2004: The Hague: Kluwer Law International).12 Ian Lloyd, Information Technology Law, 5th ed., (2008: Oxford, Oxford University Press) ¶ 1.18 (“may theoretically be subject to the jurisdiction of virtually all of the world's legal systems”).13 See, for e.g., Yahoo! Inc. v. LICRA (T.G.I. Paris, May 22, 2000, Interim Court Order No. 00/05308, 00/05309), where French law was applied due to Yahoo's auction site being accessible in France.14 Chris Reed, Internet Law, 2nd ed., (2004: Cambridge, Cambridge University Press) ¶ 7.1.3; See also Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 164–165 (D. Conn. 1996) (holding that the Connecticut court could exercise personal jurisdiction over the Massachusetts defendant because he maintained a Web site with advertisements and a toll-free phone number that was accessible by any person in any state, and therefore the defendant purposefully availed himself of the privilege of doing business not only with the forum state, Connecticut, but with any state in the United States of America); See, further, the obiter dicta in Decker v. Circus Circus Hotel,

2

Student Number: 2010982505

existing rules15, such reform on jurisdiction rules only help to increase certainty and predictability; what it

does not remove is the practical difficulties associated with access and costs in cross-border litigation, viz,

even if the parties could predict where to sue, they would still be reluctant to participate in e-commerce

due to the costs and location of dispute resolution. Furthermore, these initiatives have generally oriented

towards consumer protection16, the consequences of which are either that vendors start to decide that it is

simply not worth subjecting themselves to lawsuits in every country in the world just because someone

from any country might access their websites and therefore start limiting the geographical scope of their

businesses, or additional costs associated with the risk of being sued in almost any jurisdiction will be

transferred onto consumers, resulting in higher prices. Either way, e-commerce will be inhibited.

In light of the foregoing, there is evidently a need for alternative avenues of access to justice in

the context of e-transactions with geographically disparate participants, especially transactions of modest

value. A viable palliative that would best serve these types of disputes, it is suggested, is a global B2C

ODR system that is low-cost and trans-jurisdictional. Several authors have also suggested ODR as a

workable alternative to conventional litigation17, and significantly, international dialogue on and research

49 F. Supp. 2d 743, 745 (D.N.J. 1999).15 For e.g., within the European Union, the Brussels I Regulation simplified the jurisdictional rules pertaining to e-consumer contracts; At the international level, the Hague Conference on Private International Law produced a draft convention on jurisdiction and foreign judgments in civil and commercial matters, although disagreement over the rules that should apply to the Internet and e-commerce resulted in negotiations to be halted in 2001 and its eventual culmination in the form of a very limited Convention on Choice of Court Agreements, concluded on June 30, 2005. 16 Article 16 of the Brussels I Regulation empowers consumers to sue on contracts completed over the Internet in the courts of their country of domicile, and further provides that a consumer can only be sued in his country of domicile.17 See, e.g. the pioneering articles of David Johnson and David Post, “Law and Borders – The Rise of Law in Cyberspace”, (1996) 48 Stanford Law Review 1367--1402; Catherine Kessedjian and Sandrine Cahn, “Dispute Resolution On-line”, (1998) 32(4) The International Lawyer 977—990; Veijo Heiskanen, “Dispute Resolution in International Electronic Commerce”, (1999) 16(3) Journal of International Arbitration 29—44; Janice Nadler, “Electronically-Mediated Dispute Resolution and E-Commerce” (2001) 17(4) Negotiation Journal 333—347; Julia Hörnle, “Online Dispute Resolution in Business to Consumer E-commerce Transactions”, (2002) Journal of Information, Law and Technology (2), available at: http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2/hornle/; Jagruti Chauhan, “Online Dispute Resolution Systems: Exploring E-Commerce and E-Securities” (2003) 15(99) Windsor Review of Legal and Social Issues 99—112; Ivonnely Colón-Fung, “Protecting the New Face of Entrepreneurship: Online Appropriate Dispute Resolution and International Consumer-to-Consumer Online”, (2007) 12 Fordham Journal of Corporate & Financial Law 233—258. Lilian Edwards and Caroline Wilson, “On-line Dispute Resolution in Cross-border Consumer E-commerce Transactions: Lessons From eBay and ICANN”, (2007) 21(3) International Review of Law, Computers & Technology 315—333; Supra Note 10; Supra Note 8.

3

Student Number: 2010982505

into ODR as a solution to transnational B2C e-disputes has been gaining a fair bit of momentum

recently18. ODR plays the binary role of a “practical solution and a rhetorical gesture”19, since it not only

provides an appropriate and efficient medium for cross-border e-dispute resolution by dispensing with the

difficulties associated with conventional dispute resolution methods, but also, on a more instinctive level,

its availability (as well as awareness of it) offers consumers a measure of trust and confidence20. The

remainder of this essay will discuss the possibility of a global B2C ODR system as a feasible solution to

the aforementioned quandary. Preceding this is a compendious discussion of its offline counterpart, viz,

ADR, which has achieved considerable success in the field of international business dispute resolution.

III. The ADR Experience

The field of international business benefits from a spectrum of efficient out-of-court dispute

resolution methods21, with varying degrees of third party intervention and binding character of outcome.

Identified with its versatility and efficiency, the available ADR mechanisms ensure that parties can tailor

the dispute resolution process to fit the legal and factual idiosyncrasies of their dispute, as well as resolve

the dispute in an expeditious way while incurring relatively low-costs. This edge that ADR wields over

conventional litigation has seen the latter being relegated, in the context of international business, to the

role of being a measure of last resort after all avenues of private resolution are exhausted22. Arbitration in

particular has spearheaded the trend towards extra-judicial dispute resolution23 and has evolved into the

preferred method for international business disputes24. Recognition of the efficiency of arbitration has also

18 See section V below.19 Edwards and Wilson, Supra Note 17 at 318. 20 See Ethan Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (2001: California, Wiley); see also Colin Rule, Online Dispute Resolution for Business: B2B, E-Commerce, Consumer, Employment, Insurance and Other Commercial Conflicts (2002: California, Jossey-Bass).21 ADR can be private or court-annexed. Most commonly used ADR methods include negotiation, mediation or conciliation, neutral listener agreement, mini-trial and summary jury trial, med/arb, expert determination, contractual adjudication, executive appraisal, rent-a-judge or private judging, last-offer or pendulum or baseball arbitration.22 See Henry Brown and Arthur Marriott, ADR Principles and Practice, 2nd ed. (1999: London, Sweet & Maxwell) at 4-084 for an extensive use of ADR and arbitration in the context of international business.23 Ibid at 2-002. See also, Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration, 4th ed. (2004: London, Sweet & Maxwell) at 1-52.24 See, e.g., School of International Arbitration, CCLS, Queen Mary University of London and PricewaterhouseCoopers LLP, London, International Arbitration International Arbitration: Corporate Attitudes and

4

Student Number: 2010982505

come from the judiciary, as demonstrated by court-annexed arbitration25.

An attempt to transpose these concepts to the field of transnational B2C e-transactions entails the

existence of a spectrum of ODR modalities (i.e. the typology of ODR) that is versatile and efficient

enough to sustain the regulation of transnational B2C e-transactions. If this presupposition is sustainable,

it can be argued that ODR is developing into a coherent system of dispute resolution mechanisms for

transnational B2C e-transactions that is comparable to offline ADR. In order to be equally effective, the

ODR system must accommodate the basic features which have led to the remarkable success of ADR in

forming the bedrock of international commercial dispute resolution. In the following sections, it will be

seen that the evolution and typology of ODR both point to its potential to match or even supersede this

success.

IV. ODR – what is all the hype about?

According to a report by the United Nations Commission on International Trade Law

(UNICITRAL)26, ODR can be defined as “a means of dispute settlement whether through conciliation or

arbitration, which implies the use of online technologies to facilitate the resolution of disputes between

parties”. It tends to be dedicated to three dispute resolution models, viz, online arbitration, online

mediation and online negotiation. All three types of ODR typically involve a neutral third party who

assists the parties in one way or another to achieve resolution of their dispute. Similar to ADR, what

differentiates one type from the other is the role of the neutral party, which becomes less interventionist

along the spectrum from online arbitration to online negotiation. However, ODR is not simply ADR

conducted in an online environment; it is more than that, since the transformative element of technology

brings a new dimension to the resolution of disputes. Indeed, technology has been extolled as the “fourth

Practices 2006 at 5 (the empirical study conducted demonstrated that 73% of corporations prefer international arbitration, either standalone or combined with ADR, to resolve their cross-border disputes, 16% prefer ADR and 11% litigation).25 Non-binding court-annexed arbitration is being widely used in several of the U.S., Australia, Canada and New Zealand. See further the court-annexed ODR schemes such as the Singaporean eADR and eCDRI, http://app.subcourts.gov.sg/e-adr/index.aspx.26 Supra Note 9 ¶ 33.

5

Student Number: 2010982505

party” to a dispute resolution27. The nature of ODR allows the bridging of geographical disparateness

between parties that limit formal litigation and traditional ADR by dispensing with physical interaction,

thus offering a cost efficient, convenient and expeditious resolution to a cross-border e-dispute.

Significant progress and breakthrough have been made in the field of ODR since its embryonic

years in the nineties. At present, there exists an extensive array of private, public and hybrid providers

dispersed all over the world. For instance, the domain name dispute resolution organization, Internet

Corporation for Assigned Names and Numbers (ICANN), has built processes that have resolved

thousands of disputes across borders without being fettered by the specifics of local jurisdictions 28. In

Mexico, the ConciliaNet system run by Profeco was put in place to enable the Mexican government to

process domestic consumer disputes over an online platform. On the regional level, efforts such as the

Consumer Complaints Form for Online Resolution Mechanisms (CCForm) and Electronic Consumer

Dispute Resolution (ECODIR) are some examples of pilot projects within Europe. On the private front,

eBay has built an extensive private ODR system that handles an astounding 40 million cases per year 29,

while Cybersettle has facilitated over $1.6 billion in settlements over the span of 10 years30. The range of

ODR mechanisms offered by ODR providers31 today has also expanded substantially beyond the three

conventional ODR mechanisms, including blind-bidding, decision/negotiation support systems, Med/Arb,

expert determination, adjudication, evaluation, et cetera. Hence, the ontology and typology of ODR

methods substantiate its regulatory potential32. The extensive range of ODR methods available ensures

27 Janet Rifkin, “Online Dispute Resolution: Theory and Practice of the Fourth Party” (2001) 19(1) Conflict Resol. Q. 117—124.28 The “Uniform Domain-Name Dispute-Resolution Policy” (UDRP), available at ICANN website: http://www.icann.org/en/udrp/udrp.htm, establishes both a process and a set of rules for deciding domain name disputes.29 See Colin Rule and Chittu Nagarajan, “Leveraging the Wisdom of Crowds: The eBay Community Court and the Future of Online Dispute Resolution” (Winter 2010) ACResolution Magazine, available at: http://www.law.northwestern.edu/colloquium/negotiation/documents/ColinRule_ACRTheWisdomofCrowds.pdf; See also at James Silkenat et al. (eds), The ABA Guide to International Business Negotiations: A Comparison of Cross-cultural Issues and Successful Approaches (2009: Illinois, ABA Publishing) at 235.30 http://www.cybersettle.com/pub/home/about.aspx.31 For a list of ODR providers, see: http://www.odr.info/providers.php.32 Patrikios, Antonis. The Role of Transnational Online Arbitration in Regulating Cross-border E-business. Computer Law & Security Report, 24(1):66—76, 2008.

6

Student Number: 2010982505

that parties to transnational e-transactions can tailor a process that fits the legal and factual idiosyncrasies

of their dispute. The sheer volume of disputes resolved through ODR demonstrates ODR’s edge over the

courts in accommodating volume, which typifies cross-border B2C e-commerce disputes. It also indicates

that the international e-commerce community has acknowledged and embraced the versatility and

efficiency of ODR, to the extent that it is perhaps now the preferred or even primary medium of

commercial dispute resolution.

Thus, the creation of a global B2C ODR system provides a viable solution for high volume, small-

value cross-border e-commerce disputes. By parties voluntarily opting into an ODR process, not only will

traditional problems related to establishment of jurisdiction and other practical difficulties be ameliorated,

the macroeconomic objective of promoting e-commerce will also be achieved.

V. ODR – recent trends and initiatives around the world

Notwithstanding the progress made in the ODR movement, the ODR community has yet to

coordinate a unified legal or operational infrastructure to satisfy the dispute resolution needs on a global,

transnational scale. ODR needs to be internationalized, and this necessitates the establishment of a

harmonised legal framework or a set of principles at international level. Nonetheless, the signs over the

past few months have been propitious, as developments in the ODR field have been gaining considerable

momentum, starting with a proposal put forth by the United States in connection with the Seventh Inter-

American Specialized Conference on Private International Law to the Organization of American States

(OAS), proposing, inter alia, an OAS-ODR Initiative for the e-resolution of cross-border e-commerce

consumer disputes “designed to promote consumer confidence in e-commerce by providing quick

resolution and enforcement of disputes across borders, languages, and different legal jurisdictions” 33.

Subsequently in the beginning of June 2010, the International Forum on Online Methods for Alternative

Dispute Resolution (themed "Peace Building in the Digital Era") was held in Buenos Aires, Argentina.

33 Draft Model Law/Cooperative Framework for Electronic Resolution of Cross-Border E-Commerce Consumer Disputes at 1, available at: http://www.oas.org/dil/esp/CIDIP-VII_doc_trabajo_gt_proteccion_consumidor_anexo_A__Borrador_Ley_Marco_Cooperativo_Modelo_Solucion_Electro.pdf.

7

Student Number: 2010982505

The Forum was followed immediately by a colloquium specifically addressing the creation of a global

ODR system for cross-border electronic disputes. In the same month, the OAS proposal was presented at

the 43rd session of the UNCITRAL (held in New York, from June 29-July 9, 2010), which concluded with

overwhelming consensus amongst participating state delegations for the creation of a working group to

develop legal standards for ODR mechanisms established for the resolution of transnational B2C e-

disputes. This marks a major breakthrough in the effort to build a global ODR system, since it is the first

time a body with representation from almost every sovereign nation in the world tackled this complex

subject with such seriousness34. The inaugural Working Group meeting will get underway today

(December 13, 2010) in Vienna, Austria, and will span over a period of 5 days, during which discussion

on, inter alia, the establishment of legal standards for ODR will take place. The latest sequel in the

ongoing wave of events was the recently concluded ODR and Consumers 2010 Forum held in Vancouver

at the beginning of November. The Forum was convened in preparation for the UNCITRAL ODR

Working Group meeting in Vienna and broached topics likely to be focused on at the meeting, such as

complex questions of jurisdiction, consumer protection, applicable law, the role of the UN and individual

state governments, system architecture, funding, enforcement, transparency, system quality, and delivery

systems35. The meeting marks the first foray into integrating the various regional discussions36 into a

single dialogue focused on realizing a global, online, low-cost dispute resolution system. So it appears

that the pathway is opened, and a global B2C ODR system is no longer a farfetched ivory tower, but

indeed a very imminent possibility. Much will depend on the discussions that will take place in Vienna, as

well as during the 10th ODR Forum scheduled to take place from February 7-9, 2011 in Chennai, India,

where the experts will have to be cognizant of the issues highlighted in the following session in the

process of their discussions.

34 Leigh, Doug and Rule, Colin. Communiqué on the ODR and Consumers Colloquium, held in Vancouver, BC, Canada from November 2-3, 2010 at 2.35 Ibid.36 At present, two primary proposals have been advanced: one by Brazil, which assumes that low‐value, high‐volume disputes will be resolved in domestic courts, with the law of the consumer’s residence governing the transaction, and the other is by the United States, Supra Note 33.

8

Student Number: 2010982505

VI. Legal Obstacles – can ODR “deliver the goods”?

There remain many legal issues37 to be overcome in designing a global ODR system, and the

upcoming dialogues present a timely opportunity to produce workable solutions to these issues. This

essay will focus on the two primary challenges of funding and enforcement of ODR resolutions. Each will

be discussed in turn in this section.

A. Funding

Consumer access to justice in the context of cross-border B2C disputes is one of the most avowed

principles of ODR38. Nonetheless, the practicality of the situation is that consumer access will often have

to be reconciled with the financial viability of the undertaking. In the present ODR climate, service

providers are generally funded in accordance with one of three business models: bilateral user fees,

unilateral user fees, or external funding39. These various models will be discussed in turn, and in the

process of discerning an appropriate funding model, it should be borne in mind that a suitable financial

structure for a global B2C ODR system will need to possess the twin qualities of cost-efficiency, as well

as independence, both actual and perceived, of ODR providers.

Under the bilateral user fees model, both parties pay a proportion of the charges, which can vary

from one provider to another40. Notwithstanding its ease of implementation, such a model is not

conducive for an ODR system oriented towards B2C disputes, since the costs involved are typically

37 Due to space constraint, this section will only discuss the legal issues that surround ODR, although it is acknowledged that there are other extralegal issues that have been debated in the literature, such as security (see, e.g., Julia Hörnle, “Online Dispute Resolution – The Emperor's New Clothes? Benefits and Pitfalls of Online Dispute Resolution and its Application to Commercial Arbitration” (2003) 17(1) International Review of Law, Computers & Technology 27—36 at 30) and the lack of a personal touch in ODR proceedings (See, e.g., Supra Note 17 at 337—342; David Larson, “Online Dispute Resolutions: Do You Know Where Your Children Are?” (2003) 19 Negotiation Journal 199—205; and Philippe Gilliéron, “From Face-to-Face to Screen-to-Screen: Real Hope or True Fallacy? (2007) 23 Ohio St. J. on Disp. Resol. 301—344 at 325).38 See, e.g., Online Dispute Resolution Standards of Practice recommended by the Advisory Committee of the National Centre for Technology and Dispute Resolution, available at: http://www.icann.org/ombudsman/odr-standards-of-practice-en.pdf.39 Thomas Schultz, “Online Dispute Resolution: An Overview and Selected Issues” United Nations Economic Commission for Europe Forum on Online Dispute Resolution, Geneva, June 6-7, 2002 at 3.3.40 Karim Benyekhlef and Fabien Gélinas, “Online Dispute Resolution” (2005) 10(2) Lex Electronica 1—129 at 82.

9

Student Number: 2010982505

disproportionate to the amounts at stake, thus diminishing a consumer’s access to proceedings, which is

one of the main reasons for having an ODR system in the first place.

The unilateral user fees model, on the other hand, circumvents the aforementioned problem,

since, under this model, it is only one party (usually the e-merchant) who is charged, either in the form of

an annual membership fee (for instance for a trustmark) or on a case-to-case basis 41. However, a gravely

fundamental defect is inherent in such a model, thereby rendering this model undesirable in the context of

cross-border B2C disputes. Specifically, when one party contributes the entire sum of the fees payable,

questions as to the ODR provider’s independence and impartiality, actual or perceived, are inevitably

raised. This concern is compounded in cases where the e-merchant retains (or, indeed, intimates an

intention to retain42) the services of a particular ODR provider, since an ODR provider in such a situation

is inevitably perceived to have a vested interest in not jeopardizing its long-term business relationship

with the contributing merchant. Thus, according to Schultz43, this is a form of business affiliation that

should be avoided, as trust and the quality of justice are undermined.

External funding provides a viable way of ameliorating concerns about the independence of ODR

providers as well as reducing the costs to the consumer. An example of such a system that is currently in

operation is the ECODIR, which is funded by the European Commission and two research centres from

University College Dublin and the University of Namur44. Notwithstanding the benefits of external

funding, intervention from the public sector is inevitably necessary, even if only to create conditions such

that market forces will be able to take over later, although one might surmise that the positive effect that

ODR have over consumer confidence, and in turn e-commerce, may see governments funding ODR

41 Thomas Schultz et al., “Online Dispute Resolution: The State of the Art and the Issues”, Report of the E-Com/Law Research Project on ODR of the University of Geneva, December 2001, 1—102 at 75.42 For e.g., In December 1999, Robert Plan Corporation, an auto insurance service underwriter, selected Cybersettle.com as its exclusive ODR provider and agreed to submit at least 15,000 claims through Cybersettle system by the end of 2000.43 Thomas Schultz, “An Essay on the Role of Government for ODR, Theoretical Considerations About the Future of ODR” (August 2003) ADROnline Monthly 1—12 at 7.44 Pablo Cortés, Online Dispute Resolution for Consumers in the European Union (2011: London, Routledge) ¶ 2.2.6.2.

10

Student Number: 2010982505

projects as part of public policy45.

In view of the foregoing difficulties with respect to the bilateral and unilateral user fees models,

and should long-term commitment from the public sector be unfeasible, it would be worth exploring

recent proposals on circumventing these issues. Rule et al.46 have proposed for a system whereby vendors

pay a modest monthly fee, scaled to transaction volume, as well as a per-filing fee not exceeding 10% of

the consumer’s claim, directly into a central clearinghouse which will hold the shared fund. ODR

providers will then be paid from this pool for their services. To encourage participation, vendors will

receive recognition for their participation, conceivably through the use of on-site web seals or the like. In

this author’s opinion, this is a feasible solution, since the meagerness of the fees contributable

marginalizes any concerns over independence, given that there would be no strong incentive to favour

any one particular merchant if participation rate is large enough. It is also suggested that the success of

such a system may be enhanced by making payment providers (such as Paypal and VISA) and Internet

Service Providers (such as America Online and Verizon) contribute to the consolidated fund, since they

stand to gain proportionately from the increase in e-commerce resulting from the confidence inspired and

maintained by an effective global B2C ODR process. Governments of participating nations should

contribute as well for the same reason. In addition, safeguards to enhance independence or appearance of

it can be implemented at the level of panel composition. This can be achieved by implementing a panelist

selection process that minimizes systemic unfairness or biasness and ensures panel neutrality. Geist, in

the context of ICANN’s dispute resolution process, UDRP, suggested that such concerns could be

addressed by having three-member panels, as panelists are forced to justify their reasoning to other

panelists47. Admittedly, in the private ODR market, such a standard is hard to enforce without the

intervention of regulation. However, within the scheme of the global B2C ODR system, putting in place

an accreditation system48 and establishing international best practice guidelines would allay such

45 Ibid ¶ 2.3.2.1.46 Supra Note 8 at 238—239.47 Michael Geist, “Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP” (August 2001) at 28, available at: http://aix1.uottawa.ca/~geist/geistudrp.pdf.48 See section VIII.

11

Student Number: 2010982505

difficulties.

B. Enforcement

The enforceability of resolutions made through the ODR process is one of the most important

issues that need to be addressed in order for a global B2C ODR project to take off. Necessitating a

successful party to initiate court proceedings in order to obtain a judgment for the purposes of

enforcement will cause the incurrence of incommensurable inconvenience and costs, and in any case

would minimise the benefits of ODR. Put another way, “[b]uilding a system to provide global resolutions

independent of jurisdictional constraints does not do much good if the resolutions are dependent on those

same jurisdictional constraints for enforcement”49. Furthermore, on a macro level, the uncertainty inherent

in judicial proceedings will have the effect of undermining both consumer and e-merchant confidence,

thus dampening e-commerce. The following discussion will be approached with a different treatment of

online arbitration awards and e-resolutions arising out of non-arbitration modalities like online

negotiation or online mediation. The present difficulties surrounding both types of ODR resolutions will

be discussed, and the section will be concluded with a workable solution that will operate within a

broader framework which will be delineated in the subsequent section.

In the physical world, arbitral awards made in respect of cross-border business disputes are

enforceable by the courts of the 144 signatories to the 1958 New York Convention50. Doubts, however,

have been expressed as to whether arbitral awards delivered by an ODR provider attract the operation of

the 1958 New York Convention51, given that the Convention was concluded prior to the phenomenon of

dispute resolution taking place in an online context. Under Art IV(1), the party seeking enforcement must

supply the court with a duly authenticated original award and a duly authenticated original arbitration

agreement or duly certified copies. As such, it is not inconceivable that a court may refuse to recognize

49 Supra Note 8 at 230.50 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, entered into force on June 10, 1959, available at: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html.51 See, e.g., Gail Lasprogata, “Virtual Arbitration: Contract Law and Alternative Dispute Resolution Meet in Cyberspace” (2001) 19 Journal of Legal Studies Education 170—140; See also Supra Note 26 ¶ 36.

12

Student Number: 2010982505

and enforce an award where that award is recorded electronically52. The uncertainty over the status of

online arbitral awards in relation to the 1958 New York Convention also leaves room for a court to

interpret such an award as not comporting with established legal standards53 relating to ADR, thereby

contravening public policy, which is a ground for non-enforcement under Art V(2)(b) of the 1958 New

York Convention. No doubt, as it has been suggested54, a possible solution could be to use a printed

version of the arbitral award that is signed by the arbitrators, which will constitute the original award.

However, leaving aside the practical issues of cost and time, uncertainty will continue to hover over the

global enforceability of online arbitral awards until a suitable amendment is made to clarify Art IV.

Having said that, the international community has already engaged in dialogue on this issue 55, and

positive change might indeed be effected in the near future.

With respect to modalities of ODR other than online arbitration, there are no international

instruments currently in operation that oblige courts to ensure a party complies with any resolution that

purports to be binding. This means that different legal jurisdictions are free to adopt divergent methods of

construing binding resolutions. Three consequences ensue from this: firstly, parties engaged in

international disputes will have to incur the expenses and inconveniences associated with initiating court

action in multiple jurisdictions to compel compliance with a resolution obtained via ODR processes;

secondly, parties are subjected to a high degree of uncertainty as to the result of any litigation seeking

52 Lasprogata, Ibid at 120.53 Lucille Ponte, “Throwing Bad Money after Bad: Can Online Dispute Resolution (ODR) Really Deliver the Goods for the Unhappy Internet Shopper” (2001) Tul. J. Tech. & Intell. Prop. 55—92 at 88 (“It is also suspect whether a court in another jurisdiction will agree to enforce a decision reached in cyberspace that does not comport with established legal, ADR, and public policy standards”).54 Thomas Schultz, “Online Arbitration: Binding or Non-Binding?” (November 2002) ADROnline Monthly 1—22 at 7; Jasna Arsic, “International Commercial Arbitration on the Internet – Has the Future Come Too Early?” (1997) 14 J. Int’l. Arbit. 209 at 217; Edwards and Wilson, Supra Note 17 ¶ 2.2.2.1.55 Supra Note 9; See also The UNCITRAL Working Group on Electronic Commerce 39th Session, 11-15 March, 2002, § 152: “Difficulties for the use of electronic communications may result, in particular, from the requirement, in article IV, paragraph 1, that, in order to obtain recognition and enforcement of an arbitral award, the moving party must supply: “(a) the duly authenticated original award or a duly certified copy thereof”; and (b) the original agreement referred to in article II of a duly certified copy thereof”. In view of the growing interest in online dispute settlement mechanisms, sub-paragraph (a) of this provision may be a source of legal uncertainty, in particular in States that have not enacted legislation implementing the Model Law on Electronic Commerce, in particular its article 8, or do not other-wise provide for the functional equivalence between data messages and paper-based originals”.

13

Student Number: 2010982505

enforcement; and thirdly, the prohibitive expenses engenders a limited incentive for the losing party to

comply with the resolution56, thus eroding the effectiveness of the ODR system. Thus, clearly, in order for

a global B2C ODR project to succeed, it is paramount that ODR resolutions that purport to be binding be

enforceable.

The foregoing concerns are, nonetheless, ameliorated to a certain extent. Private legal regimes do

not necessarily need to rely on the coercive power of the state in order to achieve effective enforcement of

private legal rules and decisions; instead, enforceability may also be drawn from self-enforcement. In

other words, de facto enforcement may be effected through private mechanisms, and in this connection,

Perritt57 has suggested that the control of valuable resource can have powerful coercive effects tantamount

to de facto enforcement. As such, in the context of cyberspace, such alternative enforcement emphasizes

on control over one of three things: the money of parties; their reputation; or, their domain name 58. In this

connection, Cona suggested that one method of enforcement is via disconnection, since the unique feature

of cyberworld, where e-disputes arise, is that it necessarily “[involves] computer users who must enter the

online world through a physical access point”59. Although disconnection has undeniable coercive force,

and such a suggestion is not without consensus60, a measure as draconian as such inevitably raises

questions pertaining to the notions of fairness, since removing either the consumer’s access to the Internet

completely or the e-merchant’s website (effectively taking him out of business) is hardly commensurable

to the wrong (non-compliance), considering the pettiness of the dispute. As such, what may be an

effective self-enforcement mechanism, it is suggested, is a limited version of Cona’s suggestion that is

constructive only within the jurisdiction of identifiable market players such as eBay or Amazon.com, viz,

the exclusion of non-complying e-merchants or consumers from their own virtual marketplace. The

56 Supra Note 51 at 1.57 Henry Perritt, “Towards a Hybrid Regulatory Scheme for the Internet” (2001) U. Chi. Legal F. 215—322 at 237.58 Supra Note 51 at 8.59 Frank Cona, “Application of Online Systems in Alternative Dispute Resolution” (1997) 45 Buff. L. Rev. 975—999 at 993.60 Robert Bordone, “Electronic Online Dispute Resolution: A Systems Approach – Potential, Problems, and a Proposal” (1998) 3 Harv. Negotiation L. Rev. 175—211 at 206 (the author suggests the temporary or permanent loss of cyberspace citizenship rights as ways to enforce ODR results).

14

Student Number: 2010982505

ramifications of such an exclusion is less far-reaching and therefore less objectionable.

Social norms and corresponding social sanctions also effect de facto enforcement in the form of

voluntary compliance. In cyberworld, e-merchants and their consumers could be seen as a close-knit

community where the bad behaviour of the one would quickly lead to his exclusion from the community.

Detrimental effect to reputation therefore exercises a coercive force over e-merchants and consumers in

respect of compliance with ODR resolutions. Gibbons, however, has argued that “reputation is likely to

be less effective in one-time consumer transactions, particularly if consumers are isolated and sellers can

readily discriminate between sophisticated and unsophisticated buyers”, and the fact of the matter is that

“an anonymous e-consumer with a series of one-time transactions with different e-merchants best

describes the e-marketplace”61. Indeed, several studies indeed tend to prove that social sanctions only play

a role within close-knit communities which entertain ongoing relationships62. Nevertheless, the

assumption that “one-shot” players are representative of the e-market seems doubtful. A recent study on

customer loyalty in relation to B2C e-commerce sites reveal that customer satisfaction will beget

goodwill towards the particular e-commerce site, building trust in the process. All these factors will in

turn translate into customer loyalty63. Evidently, reputation does play a fundamental role. The importance

of reputation and social norms on the Internet is further reflected in the modus operandi of e-Bay, where

there is in place a reputational system of post-transaction feedback ratings. In this connection, it has been

suggested that “[c]hecking on a seller’s feedback rating is probably the first step any user takes before

considering whether to bid on an item, and acquiring a positive feedback rating is thus highly

61 Llewellyn Joseph Gibbons, “Creating a Market for Justice; a Market Incentive Solution to Regulating the Playing Field: Judicial Deference, Judicial Review, Due Process, and Fair Play in Online Consumer Arbitration” (2002) 23 New Jersey International Law & Business 1—64 at 28 (quoting, in part, Christopher Drahozal, “Unfair Arbitration Clauses” (2001) Uni. Ill. L. Rev. 696 at 796); see also Ethan Katsh et al., “E-Commerce, E-Disputes, and E-Dispute Resolution Systems: In the Shadow of “eBay Law”” (2000) 15 Ohio St. J. on Disp. Resol. 705—734 at 714; see also Thomas Schultz, “Does Online Dispute Resolution Need Governmental Intervention? The Case for Architecture of Control and Trust” 6(1) N.C.J.L. & Tech. 71—106 at 82.62 Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (1994: Massachusetts, Harvard University Press).63 Sun Hongfei et al., “The Customer Loyalty Research Based on B2C E-Commerce Sites” Paper presented at the 2010 National Conference on E-Business and E-Government.

15

Student Number: 2010982505

important”64. Accordingly, “[p]rotecting one’s feedback rating looms large in any eBay user’s mind”65,

and as such, the threat of damage to reputation is clearly coercive enough to compel voluntary compliance

with an ODR resolution.

Other self-enforcement mechanisms commonly utilized today include trustmarks, escrow systems,

judgment funds and credit-card charge backs66. There is no need for an excursive investigation of these

various mechanisms, suffice to make the observation that these mechanisms all generate the merits of

ODR, viz, low-costs and convenience, and thus yield considerable practical utility as an extra-legal

enforcement mechanism within the grand scheme of a global B2C ODR system. However, self-

enforcement mechanisms cannot form the sole type of enforcement – they necessarily need to be

complemented by state regulation within an internationally co-operative co-regulatory model, which will

be discussed in the next segment.

VII. Co-regulation – a complementing strategy

Co-regulation merges the traditional concepts of state regulation and self-regulation in order to

achieve optimum regulatory results. It “combines binding legislative and regulatory action with actions

taken by the actors most concerned, drawing on their practical expertise”67. Transposing the concept of

co-regulation to global e-commerce provides a solution to its growing need for an innovative regulatory

approach. It is an efficient system which provides several options in order to accommodate the different

needs of different cases, including the possibility to internationally enforce the rights of disputants when

necessary. Thus, the complementary mechanisms of traditional enforcement and self-enforcement

mechanisms ensure the enforceability of ODR resolution and, thereby enhancing normative value of the

system.

64 Katsh et al., Supra Note 58 729.65 Ibid.66 For a detailed examination of these various self-enforcement mechanisms, see Supra Note 11 at 223—233; see also Janynefrances Walusimbi Nabawanuka “Development of a Self Enforceable Online Arbitration System is the Key to Effective Online Dispute Resolution (ODR)” (February 2006) University of Cape Town LLM Thesis 1—136 at 97—101.67 European Commission, European Governance: A White Paper COM(2001) 428 final, 25 July 2001 at 21, available at: http://ec.europa.eu/governance/white_paper/en.pdf.

16

Student Number: 2010982505

Under a co-regulation system, governmental intervention is crucial in the establishment of

cybercourts, which will serve the facilitative function of allowing successful parties to apply for a court

order over the Internet to enforce a binding resolution obtained via ODR processes in the event of non-

compliance. In addition, local enforcement agencies in the vendor’s country of domicile will be

empowered to pursue compliance with the resolution, including taking direct enforcement action,

requesting assistance from payment networks, or referring cases to collection agencies. Admittedly, the

success of this proposal is wholly dependent on how many nations support the idea and are willing to

contribute and vest jurisdictional power in an international system of cybercourts. As a cybercourt should

be an inter-governmental body, this cannot be achieved without some sort of treaty or agreement between

the participating nations68. Nevertheless, the recent spate of activity pertaining to the ODR movement has

demonstrated strong support from almost every sovereign nation in the world, and it is likely that an

international consensus and commitment could be reached in the coming months.

The discussion hitherto has advanced a global B2C ODR system as the future of transnational B2C

e-disputes, drawn attention to the growing international consensus over the desirability and feasibility of

such a system, as well as suggested ways to address the various legal issues that will obstruct such a

system from reaching its full regulatory potential. The following section will attempt to put flesh on bones

by delineating the mechanisms and modus operandi of the envisioned global B2C ODR system.

VIII. A Global B2C ODR System – putting the pieces together The system envisaged by this author is somewhat similar to the one proposed by the OAS69,

although with some discrepancies. The system proposed herein involves an international administrative

body whose function is to serve as a central clearinghouse for the electronic processing of claims filed by

disputants through their respective national administrative bodies. The processed claims will be

disseminated to an appropriate ODR provider or providers selected from a pool of ODR providers

registered and approved under an international accreditation scheme. Requirements under this

68 Susan Nauss Exon, ‘The Internet meets Obi-Wan Kenobi in the court of next resort’, (2002) 8 Boston University Journal of Science and Technology Law 1—36 at 9.69 Supra Note 34 at 3—4.

17

Student Number: 2010982505

accreditation scheme must be sufficiently high in order to ensure that the e-commerce disputes are

resolved fairly and efficiently, but at the same time, they must also be flexible enough to make sure that a

wide variety of different ODR providers, be it individuals like Ombudsmen or collective bodies like

Internet community courts, fall within its purview along with online arbitration centers. It is suggested

that the European Commission Recommendations on “the principles applicable to the bodies responsible

for out-of-court settlement of consumer disputes” (the 1998 Recommendations70) and “the principles for

out-of-court bodies involved in the consensual resolution of consumer disputes” (2001

Recommendations71) are instructive and can serve as a useful reference for the purposes of developing

this scheme. Salient principles under the recommendations are, inter alia, impartiality, transparency,

effectiveness, procedural fairness and independence.

In the event of non-compliance with an arbitral award or binding ODR resolution, the successful

party can seek enforcement by applying over the Internet to the cybercourt located in the non-complying

party’s country of domicile for a court order. Local enforcement agencies will then pursue compliance

with the resolution either by taking direct enforcement action, requesting assistance from payment

networks, or referring cases to collection agencies. De facto enforcement for other forms of non-binding

ODR resolutions will be effected through self-enforcement mechanisms.

IX. Concluding Remarks – the future is now

The ODR system envisioned in this essay is a global one targeted at providing a solution to

transnational B2C e-disputes, which are typically high in volume and low in value. In order for such a

project to take off, concerted international effort will be required to address besetting legal issues related

to funding of ODR providers and enforceability of ODR resolutions. In respect to the latter, it has been

argued that ODR can form the basis of a delocalized co-regulatory system, whereby de facto enforcement

70 European Commission Recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (1998/257/CE), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31998H0257:EN:HTML.71 European Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (2001/310/CE), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001H0310:EN:HTML.

18

Student Number: 2010982505

is effected through private self-enforcement mechanisms and supported by a legal framework fronted by a

system of national cybercourts. An infrastructure as such will enhance the normative value of the system

as a whole. Crucially, an international phenomenon such as e-commerce needs more than similar national

frameworks. Thus, the global B2C ODR system will need to operate within a coordinated framework of

harmonized international principles or rules. This necessitates that future work undertaken by

UNCITRAL in this field place emphasis on designing generic principles or rules for the B2C context.

Such principles or rules, it is suggested, should provide for, inter alia, procedures of the ODR system,

core principles like accessibility and accountability, duties and liabilities of ODR providers, specific rules

regulating cybercourts, accreditation scheme for ODR providers, as well as enforcement.

The challenge of dispensing redress to global participants in e-commerce is undeniably a

formidable one, but it does appear that the ODR movement has reached a stage of maturity. As such, the

time has come for such a system to come to the fore, notwithstanding the legal or practical challenges it

will need to surmount.

19

Student Number: 2010982505

X. Bibliography

Books

Brown, Henry and Marriott, Arthur. ADR Principles and Practice, 2nd ed. London: Sweet & Maxwell, 1999.

Cortés, Pablo. Online Dispute Resolution for Consumers in the European Union. London: Routledge, 2011.

Ellickson, Robert C. Order Without Law. Massachusetts: Harvard University Press, 1991.

Hörnle, Julia. Cross-Border Internet Dispute Resolution. Cambridge: Cambridge University Press, 2009.

Horvath, August et al. Consumer Protection Law Developments. Illinois: ABA Publishing, 2009.

Katsh, Ethan and Rifkin, Janet. Online Dispute Resolution: Resolving Conflicts in Cyberspace. California: Wiley, 2001.

Kaufmann-Kohler, Gabrielle and Schultz, Thomas. Online Dispute Resolution: Challenges for Contemporary Justice. The Hague: Kluwer Law International, 2004.

Lloyd, Ian. Information Technology Law, 4th ed. Oxford: Oxford University Press, 2004.

Redfern, Alan and Hunter, Martin. Law and Practice of International Commercial Arbitration, 4th ed. London: Sweet & Maxwell, 2004.

Reed, Chris. Internet Law, 2nd ed. Cambridge: Cambridge University Press, 2004.

Rule, Colin. Online Dispute Resolution for Business: B2B, E-Commerce, Consumer, Employment, Insurance and Other Commercial Conflicts. California: Jossey-Bass, 2002.

Silkenat, James et al. (eds). The ABA Guide to International Business Negotiations: A Comparison of Cross-cultural Issues and Successful Approaches. Illinois: ABA Publishing, 2009.

Solovay, Norman and Reed, Cynthia. The Internet and Dispute Resolution: Untangling the Web. New York: Law Journal Press, 2003.

Wang, Faye Fangfei. Online Dispute Resolution: Technology, Management and Legal Practice from an International Perspective. Oxford: Chandos, 2009.

Articles and Journals

Arsic, Jasna. International Commercial Arbitration on the Internet – Has the Future Come Too Early? 14 Journal of International Arbitration 209—221, 1997.

Benyekhlef, Karim and Gélinas, Fabien. Online Dispute Resolution. Lex Electronica, 10(2):1—129,

20

Student Number: 2010982505

2005.

Bordone, Robert. Electronic Online Dispute Resolution: A Systems Approach – Potential, Problems, and a Proposal. Harv. Negotiation L. Rev. 3:175—211, 1998.

Calliess, Gralf-Peter. Online Dispute Resolution: Consumer Redress in a Global Market Place. German Law Journal, 7(8):647—660, 2006.

Chauhan, Jagruti. Online Dispute Resolution Systems: Exploring E-Commerce and E-Securities. Windsor Review of Legal and Social Issues 15(99):99—112, 2003.

Colón-Fung, Ivonnely. Protecting the New Face of Entrepreneurship: Online Appropriate Dispute Resolution and International Consumer-to-Consumer Online. Fordham Journal of Corporate & Financial Law, 12:233—258, 2007.

Cona, Frank. Application of Online Systems in Alternative Dispute Resolution. Buff. L. Rev. 45:975—999, 1997.

Drahozal, Christopher. Unfair Arbitration Clauses. Uni. Ill. L. Rev., 695—790, 2001.

Edwards, Lilian and Wilson, Caroline. On-line Dispute Resolution in Cross-border Consumer E-commerce Transactions: Lessons From eBay and ICANN. International Review of Law, Computers & Technology 21(3):315—333, 2007.

Galves, Fred. Virtual Justice as Reality: Making the Resolution of E-Commerce Disputes More Convenient, Legitimate, Efficient, and Secure. Journal of Law, Technology & Policy, 1—62, 2009.

Gibbons, Llewellyn Joseph. Creating a Market for Justice; a Market Incentive Solution to Regulating the Playing Field: Judicial Deference, Judicial Review, Due Process, and Fair Play in Online Consumer Arbitration. New Jersey International Law & Business, 23:1—64, 2002.

Gilliéron, Philippe. From Face-to-Face to Screen-to-Screen: Real Hope of True Fallacy? 23 Ohio St. J. on Disp. Resol. 23:301—344, 2007.

Ghoshray, Saby. Charting the Future of Online Dispute Resolution: An Analysis of the Constitutional and Jurisdictional Quandary. The University of Toledo Law Review, 38(1):317—350, 2006.

Heiskanen, Veijo. Dispute Resolution in International Electronic Commerce. Journal of International Arbitration 16(3):29—44, 1999.

Hörnle, Julia. Online Dispute Resolution in Business to Consumer E-commerce Transactions. Journal of Information, Law and Technology, 2, 2002 (2), available at: http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2/hornle/.

Hörnle, Julia. Online Dispute Resolution – The Emperor's New Clothes? Benefits and Pitfalls of Online Dispute Resolution and its Application to Commercial Arbitration. International Review of Law, Computers & Technology, 17(1):27—36, 2003.

Johansson, Bjorn. Cybercourts, the future of governmental online dispute resolution? Part 1. ADR Bulletin: Vol. 8, No. 7, Article 3, available at: http://epublications.bond.edu.au/adr/vol8/iss7/3.

21

Student Number: 2010982505

Johansson, Bjorn. Cybercourts, the future of governmental online dispute resolution? Part 2. ADR Bulletin: Vol. 8, No. 8, Article 6, available at: http://epublications.bond.edu.au/adr/vol8/iss8/6.

Johnson, David and Post, David. Law and Borders – The Rise of Law in Cyberspace. Stanford Law Review, 48:1367—1402, 1996.

Kaufmann-Kohler, Gabrielle. Online Dispute Resolution and its Significance for International Commercial Arbitration. In Global Reflections on International Law – Liber Amicorum in honour of Robert Briner. ICC Publishing, 437—456 (G. Aksen et al. eds., ICC Publishing No. 693, 2005).

Katsh, Ethan et al. E-Commerce, E-Disputes, and E-Dispute Resolution Systems: In the Shadow of "eBay Law”. Ohio St. J. on Disp. Resol. 15:705—734, 2000.

Kessedjian, Catherine. Dispute Resolution On-line. The International Lawyer, 32(4):977—990, 1998.

Larson, David. Online Dispute Resolutions: Do You Know Where Your Children Are? Negotiation Journal 19:199—205, 2003.

Lasprogata, Gail. Virtual Arbitration: Contract Law and Alternative Dispute Resolution Meet in Cyberspace. Journal of Legal Studies Education, 19:107—140, 2001.

Mann, Bruce. Smoothing Some Wrinkles in Online Dispute Resolution. International Journal of Law and Information Technology, 17(1):83—112, 2008.

Martin, Mary Shannon. “Keep it Online: the Hague Convention and the Need for Online Alternative Dispute Resolution in International Business-to-Consumer E-commerce”. Boston University International Law Journal, 20:125—160, 2002.

Morek, Rafal. Regulation of Online Dispute Resolution: Between Law and Technology. (Center for Info. Tech. & Dispute Resolution, Working Paper, 2003).

Nadler, Janice. Electronically-Mediated Dispute Resolution and E-Commerce. Negotiation Journal, 17(4):333—347, 2001.

Nauss Exon, Susan. The Internet meets Obi-Wan Kenobi in the court of next resort. Boston University Journal of Science and Technology Law, 8:1—36, 2002.

Patrikios, Antonis. Resolution of Cross-border E-business Disputes by Arbitration Tribunals on the Basis of Transnational Substantive Rules of Law and E-business Usages: The Emergence of the Lex Informatica. The University of Toledo Law Review, 38(1):271—306, 2006.

Patrikios, Antonis. The Role of Transnational Online Arbitration in Regulating Cross-border E-business. Computer Law & Security Report, 24(1):66—76, 2008.

Perritt, Henry. Dispute Resolution in Cyberspace: Demand for New Forms of ADR. Ohio St. J. on Disp. Resol., 15:675—704, 1999~2000.

Perritt, Henry. Towards a Hybrid Regulatory Scheme for the Internet. U. Chi. Legal F., 215—322, 2001

Ponte, Lucille. Throwing Bad Money After Bad: Can Online Dispute Resolution (ODR) Really Deliver the Goods for the Unhappy Internet Shopper? 3 Tul. J. Tech. & Intell. Prop. 55—92, 2001.

22

Student Number: 2010982505

Ramasastry, Anita. Government-to-Citizen Online Dispute Resolution: A Preliminary Enquiry. Wash. L. Rev. 79:159—174, 2004.

Rifkin, Janet. Online Dispute Resolution: Theory and Practice of the Fourth Party. Conflict Resol. Q., 19(1):117—124, 2001.

Rule, Colin et al. Designing a Global Consumer Online Dispute Resolution (ODR) System for Cross-Border Small Value-High Volume Claims – OAS Developments. Uniform Commercial Code Law Journal, 42:221—255, 2010.

Rule, Colin and Nagarajan, Chittu. Leveraging the Wisdom of Crowds: the eBay Community Court and the Future of Online Dispute Resolution. ACResolution Magazine (Winter 2010). Available at: http://www.law.northwestern.edu/colloquium/negotiation/documents/ColinRule_ACRTheWisdomofCrowds.pdf.

Schultz, Thomas. An Essay on the Role of Government for ODR: Theoretical Considerations about the Future of ODR. ADROnline Monthly, 1—12, August 2003.

Schultz, Thomas. Does Online Dispute Resolution Need Governmental Intervention? The Case for Architecture of Control and Trust. N.C.J.L. & Tech. 6(1):71—106, 2004.

Schultz, Thomas. Online Arbitration: Binding or Non-Binding? ADROnline Monthly 1—22, November 2002.

Svantesson, Dan Jerker B. Geo-location Technologies and Other Means of Placing Borders on the ‘Borderless’ Internet. (2004) Law papers. Paper 63.

Tang, Zheng. An Effective Dispute Resolution System for Electronic Consumer Contracts. Computer Law & Security Report, 23(1):42—52, 2007.

Tyler, Melissa and Bornstein, Jackie. Accreditation of On-line Dispute Resolution Practitioners. Conflict Resolution Quarterly, 23(3):383—404, 2006.

Van den Heuvel, Esther. Online Dispute Resolution as a Solution to Cross-border E-disputes: An Introduction to ODR (August 2000). Available at: http://www.oecd.int/dsti/sti/it/secur/act/online_trust/vandenheuvel.pdf.

Wentworth, Elisabeth. Online Dispute Resolution: Global Issues and Australian Standards – Towards a Global Best Practice Model for B2C Online Dispute Resolution. The Arbitrator and Mediator, 21(2): 21—38, 2002.

Others

A/CN.9/706 – Note by the Secretariat Accompanying the United Nations Commission on International Trade Law, 43rd Session, “Possible future work on online dispute resolution in cross-border electronic commerce transactions” (New York, 21 June – 9 July, 2010), available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V10/531/00/PDF/V1053100.pdf?OpenElement.

23

Student Number: 2010982505

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, entered into force on June 10, 1959, available at: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html.

Draft Model Law/Cooperative Framework for Electronic Resolution of Cross-Border E-Commerce Consumer Disputes at 1, available at: http://www.oas.org/dil/esp/CIDIP-VII_doc_trabajo_gt_proteccion_consumidor_anexo_A__Borrador_Ley_Marco_Cooperativo_Modelo_Solucion_Electro.pdf.

European Commission, European Governance: A White Paper COM(2001) 428 final, 25 July 2001 at 21, available at: http://ec.europa.eu/governance/white_paper/en.pdf.

European Commission Recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (1998/257/CE), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31998H0257:EN:HTML.

European Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (2001/310/CE), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001H0310:EN:HTML.

Geist, Michael, “Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP” (August 2001), available at: http://aix1.uottawa.ca/~geist/geistudrp.pdf.

Ham, Shane and Atkinson, Robert. A Third Way Framework for Global E-Commerce. Progressive Policy Institute Report, 2001. Available at: http://www.dlc.org/documents/global_ecommerce.pdf.

Hongfei, Sun et al. The Customer Loyalty Research Based on B2C E-Commerce Sites. Paper presented at the 2010 National Conference on E-Business and E-Government.

Leigh, Doug and Rule, Colin. Communiqué on the ODR and Consumers Colloquium, held in Vancouver, BC, Canada from November 2-3, 2010.

Online Dispute Resolution Standards of Practice recommended by the Advisory Committee of the National Centre for Technology and Dispute Resolution, available at: http://www.icann.org/ombudsman/odr-standards-of-practice-en.pdf.

Nabawanuka, Janynefrances Walusimbi. Development of a Self Enforceable Online Arbitration System is the Key to Effective Online Dispute Resolution (ODR). University of Cape Town LLM Thesis 1—136, February 2006.

School of International Arbitration, CCLS, Queen Mary University of London and PricewaterhouseCoopers LLP, London, International Arbitration International Arbitration: Corporate Attitudes and Practices 2006.

Schulze Suedhoff, Ulrich. The Protection of the Online Consumer Through Online Dispute Resolution and Other Models of Redress. Universitaet zu Berlin LLM These.1—127, October 2001.

OECD Conference on Empowering E-consumers: Strengthening Consumer Protection in the Internet Economy, Background Report (8-10 December 2009) at 36, available at: http://www.oecd.org/dataoecd/44/13/44047583.pdf.

24

Student Number: 2010982505

Schultz, Thomas. Online Dispute Resolution: An Overview and Selected Issues. United Nations Economic Commission for Europe Forum on Online Dispute Resolution, Geneva, June 6-7, 2002.

Sidiropoulou, Panagiota-Aikaterina A and Moustakas, Evangelos. E-disputes at the Crossroads: A Stakeholder Analysis of On-line Dispute Resolution Mechanisms (ODR). 17th European Conference on Information Systems in Verona, Italy, 2009.

The UNCITRAL Working Group on Electronic Commerce 39th Session, 11-15 March, 2002.

25