UNCITRAL approved its new Working Group for cross-border ODR this July,as we read on this site several times. The UNCITRAL Working Group will prepare ODR Rules which should be applicable worldwide. Hopefully the UNCITRAL future work could be used by the future new global ODR system,in a parallel to what happened more than 10 years ago when a group of experts around WIPO drafted UDRP Policy and Rules for a global resolution of domain name disputes.
It really seems that global ODR system will need one set of ODR Rules which will include specification of fact-based claims and list of available remedies. This assumption is based on the requirement that the global ODR system must be simple in order to be workable and attractive,at least during its initial stages. Simplified system which would allow only a clearly defined set of fact-based legal claims should enable to minimize the complexity of differing national laws in multiple jurisdictions which are potentially applicable for a single e-commerce transaction. The product purchased on-line either complies with the customer‘s order or not,the product has the specified characteristics or not,etc. Single set of Rules would also help in resolving the multi-lingual issues because the potentially possible procedural communications of the parties to a dispute will be more limited.
Even within EU where national consumer and e-commerce laws are similar and should be further harmonized in the near future by a Directive harmonizing consumer rights,there are and will be substantial differences in case law,legal interpretation of harmonized laws varies from state to state and not all areas of consumer and e-commerce laws are harmonized. So even in the EU a pan-European ODR system would be very complex without a set of unified ODR rules. In a global environment such cross-border differences and complexities are so substantial that it seems that without a single set of Rules the global ODR system is not realizable.
A clear disadvantage of a single set of Rules is that inevitably the new system can be applicable only for a part of e-commerce disputes – disputes which would conform to the fact-based claims specified in such Rules. The Rules will need to be regularly updated to address wider and wider areas of e-commerce and novel ways of on-line dispute resolution. For these reasons they should be as flexible as possible.
It is fortunate in this respect that recently the Organization of American States (OAS) prepared Draft Model Rules for Electronic Resolution of Cross-Border E-Commerce Consumer Disputes (OAS Model Rules),which also have been discussed on this site. OAS Model Rules represent current “state of art“ in ODR and any work on ODR Rules for the global ODR system will most probably just work on what have been achieved by the OAS Model Rules. We will see very soon – UNCITRAL’s ODR Working Group is to meet for the first time in December.
Perhaps even more important (and interesting) question than how the future global ODR Rules should look and feel is which authority should control them. Should it be a private body – an open association similar to ICANN? Or rather a public inter-governmental body? Or a new type of organization not known before? I look forvard to discussing about the central administrator of the new ODR system in Vancouver and before.
It is probable and in fact desirable that the discussion will continue for a longer time after the Vancouver conference. What can perhaps be achieved in Vancouver is to initiate an association of entities interested in establishing the new ODR system. Such an association would then steer future work,can coordinate with UNCITRAL and other international bodies etc.
Zbynek Loebl
