Zybnek Loebl
What should be principles of a new global system of cross-border e-commerce ODR? In other words, what the new system should bring to the key players, on-line providers and consumers? I try to summarize below several issues for discussion, based on existing initiatives and feedback received during our two meetings in Vienna and Buenos Aires:
1. The new system should be global; i.e. our ambition should be that the new system is to be implemented anywhere in the world. Internet is global and e-commerce is becoming more and more global as well.
2. The new system should encourage parties to agree on a solution rather than to dispute. The new system should make use of modern on-line technology to encourage and enable the parties to agree among themselves rather than to proceed to arbitration or mediation.
3. There should be only one set of ODR Rules. The new system cannot fit all types of e-commerce disputes and all possible dispute scenarios, but if it will cover large part of such disputes – disputes which can be resolved using one set of Rules only, we will make a very significant progress. We may draw a parallel with the situation before the year 2000, when UDRP Policy and Rules were developed for a global resolution of top-level domain name disputes.
4. The Rules should contain ennumerative lists of possible claims and remedies. In the absence of a global e-commerce international treaty it is the only way how to ensure that the new system is efficient. Again, there is a parallel with UDRP which was prepared this way and has worked well for more than ten years.
5. There should be no or minimum costs for consumers. Most of consumer transactions are of low value and consumers will not use the new system if it requires substantial costs from them.
6. The new system should require only relatively low costs and provide clear business benefits for on-line providers. Principle funding of the new system should be by regular monthly contributions from every participating on-line provider. On-line providers engaged in cross-border trade should benefit from increased consumer confidence brought by the presence of the new ODR system. Because of its global nature, even small contributions from every participating on-line provider worldwide should accummulate sufficient funds to cover costs of operation of the new system.
7. There should be efficient private enforcement mechanisms attached to the new system. It will be difficult to rely on available public enforcement options, due to the cross-border character of disputes, electronic-only nature of the new System and other factors. Such efficient private enforcement mechanisms should include a range of possibilities, such as enforcement of ODR decisions by payment intermediaries, withdrawal of a right to participate in the new System or even suspension of a domain name in defined situations.
8. The new system should be multi-lingual. Internet and e-commerce are more and more multi-lingual and a global cross-border ODR must be built as multi-lingual from its start.
9. There should be one gateway to the new System for on-line providers. On-line providers will be typically involved in multiple disputes within the new system and they should be able to work with only one set of on-line forms which look and feel the way they are used to. This does not mean that all the disputes of an on-line provider should be resolved by one dispute resolution provider. The gateway will direct all procedural communication of such on-line provider to and from the respective dispute resolution center selected to resolve the dispute.
10. There should be contractual exclusions of liability for enforcers, dispute resolution providers, panellists and operator of the new system. In order to make the new system workable globally the parties to a dispute must provide exclusions of liability to entities involved in the dispute resolution. Again, there is a parallel with UDRP in this respect.
11. There should be common generally accepted standards for the accreditation of dispute resolution centers/providers as well as Panellists. The new system should include common requirements prescribed for the dispute resolution centers wanting to become part of the System, as well as for each of the Panellists worldwide.
12. There should be clear common rules for the selection of the dispute resolution center and for the appointment of the Panellist(s) to resolve a concrete dispute. It is necessary to establish clear rules for the selection of a dispute resolution center which will administer the dispute and also principles for the appointment of Panellist(s) to decide the dispute, in order to prevent forum shopping.
