If we come to a consensus that the new global ODR system should be developed as a self-regulated, essentially private system with active participation of public bodies – sg. like ICANN – then the OAS Model Rules can be used as the excellent inspiration for the Rules of the new ODR systém, with some necessary additions.
Model OAS Rules are addressed to governements which are requested to adopt them as mandatory ADR Rules for cross-border e-commerce disputes. The ODR Rules for the self-regulated global ODR will be addressed to businesses and consumers and will be voluntary. In addition, OAS Model Rules are intended for America while the global ODR Rules should be applicable globally. Inevitably, the ODR Rules will need to deal with some issues which are not included in the Model OAS Rules. I tried to summarize selected issues which are not regulated by the OAS Model Rules and should be included in the global ODR Rules below:
Common protocol. ODR Rules will need to refer to a set of common communication rules/quasi standards which will enable user-friendly usage of the new system by businesses and consumers from all around the world and efficient exchange of information between service providers and the Central Body of the whole system.
The common protocol should include common procedural forms and standardized communication messages in multiple languages, common technical standards with which every service provider within the system will have to be compliant; common categorization of all the decisions and a central database of decisions (anticipated also by the OAS Rules), which is closely related to common rules for anonymization of decisions before their publication.
Possible appeal to common courts. OAS Model Rules consider the awards as final and binding for the parties and subject to national laws on arbitration awards. Bearing in mind global nature of the new ODR system and multiple applicable jurisdictions, in the absence of an international agreement it will be impossible to prepare ODR Rules which will conform with all or absolute majority of national laws on arbitration and binding arbitration awards.
Therefore, similarly as with UDRP, the ODR Rules may regulate the awards as binding unless a party files an action in the same dispute with a common court within a relatively short time period (e.g. 30 days). Then national laws on binding arbitration would not be applicable. Regarding UDRP and domain name cases, less than 3% of decisions are appealed to courts and many of the appeals are rejected. So this option has been a big success in international domain name cases and it may be similarly successful for cross-border e-commerce disputes in general.
Effective private enforcement. ODR Rules should include simple and efficient private enforcement mechanism, probably via international payment systems. In addition, the ODR Rules should include a possibility to identify clearly abusive on-line providers and in justified situations to withdraw on-line traders from the system altogether.
Different types of ODR proceedings. ODR Rules should be flexible in recognizing different types of proceedings, not just standard single-panel or three-member-panel processes. On-line dispute resolution will enable a number of new procedures and the global ODR system should be able to adopt all such new possibilities.
Exclusion of liability. Every on-line trader and consumer participating in the ODR system should agree to exclude liability of service providers, panellists, Central Body and enforcers (payment intermediaries).
Panellists. The ODR Rules should contain globally applicable prescribed qualifications of panellists, common rules how to appoint panellists to cases and perhaps also common rules for remuneration of Panellists in order to prevent forum shopping.
Language rules.According to OAS Model Rules, the language of the ODR proceeding will be the language of the e-commerce transaction. Nevertheless, what if the e-commerce transaction will be multi-lingual? Future e-commerce portals will be able to deal with multiple languages and seller and buyer will each use their own languages during an e-commerce transaction. Therefore the language rules will probably need to be considered from this perspective in the ODR Rules.
Zbynek,
Thank you for all your insightful posts. But, I am still unclear about what is the aim of the UNCITRAL ODR Working Group. Would you be able to through some light on their mandate?
My understanding is that they are going to explore different routes for harmonising and supporting the growth of ODR, thus increasing confidence in e-commerce for both, businesses and consumers.
As you suggested in your previous post, many of us, in particular those involved with the UNCITRAL petition, would like to see UNCITRAL designing something similar to what ICANN and WIPO did when they created the UDRP –ie a global ODR system on the lines of what was proposed at OAS. Yet, isn’t it more likely that the UNCITRAL Working Group would simple conclude its mandate by providing another list of principles or guidelines for ODR (perhaps following the OAS proposal) to encourage a uniformed development/regulation of ODR services. That, in itself, would be beneficial; but, would that be enough?
All the best,
Pablo
Dear Pablo,
I thank you for your comments. I agree with you fully. We are in the beginning of a longer process and we just discuss and explore several possible options. We shall see what the most important stakeholders – businesses and consumer associations in different parts of the world – would select as the best approach. This autumn there will be good opportunities to start getting answers and planning further steps, e.g. in Vancouver in November.
Best personal wishes,
Zbynek