Online Dispute Resolution: Challenges for Contemporary Justice
![handle is hein.kluwer/asidpurv0008 and id is 40 raw text is:
Online Dispute Resolution:
Challenges for Contemporary justice
Commercial and consumer parties to
contracts are increasingly turning to
information technology as a means of
concluding contracts. The resulting concept
of electronic commerce (e-commerce) has a
number of significant features. Parties to
electronic contracts may be situated within
the same jurisdiction or in separate jurisdictions.
As with all contracts, there need to be readily
understandable and applicable rules for
electronic contracts and communications, for
example with regard to electronic signatures,
admissibility of electronic documents as
evidence and choice of applicable substantive
law. A number of jurisdictions have, during
the past decade, enacted legislation
concerning electronic contracts and
communications. UNCITRAL has also been
active in this regard, adopting two Model
Laws2 and drafting a UN Convention3.
Arbitration law in some jurisdictions even stole
a march on contract law in according the
term 'writing' the widest possible definition by
including any means by which information
can be recorded4.
Whilst the media for contracting may
be electronic, the contractors themselves
are human; and whilst electronic media are
prone to error, humans are prone to
disputes. In common with paper contracts,
therefore, the possibilities for disputes
arising from e-contracts are limitless, though
the latter, by virtue of their nature and the
customised legal rules applicable to them,
raise additional possibilities for dispute.
These developments have, in turn, created
new challenges for arbitration and ADR,
particularly in international cases.
Electronic contracting is not, however,
the only commercial activity to have
flowed from the burgeoning use of
information technology worldwide and the
exponential growth of the Internet. The
registration of Internet domain names by
international and regional authorities created
for this purpose, and the need for
legitimate owners of domain names to
protect their interests against cybersquatters,
have created a new jurisprudence (based
essentially on the law of passing off)
through the medium of a new category of
international arbitration.
In one sense, online dispute resolution
(ODR) may be described as documents-
only dispute resolution for the new
millennium. ODR certainly shares a number
of features with conventional documents-
only mediation and arbitration. Everything
between the parties and the neutral third
party is done from a distance, from the
filing of an application for mediation or
arbitration to the making of a settlement
agreement or publication of an award. The
parties do not meet the neutral and there is
no 'hearing' in a physical sense. There are,
however, features that are unique to ODR,
such as the need to agree the precise IT
medium through which claims, statements,
allegations, and proposals or directions will
be communicated. The importance of the
'application' - ie an appropriate medium, the
modus operandi therefor and the neutral's
skill in operating it - has led to its being
dubbed by two leading commentators on
ODR as the fourth party'6.
More to the point, there is no one
authoritative definition of 'ODR'. One
school of thought holds that it is suigeneris
and thus permits the development of new
dispute resolution procedures, whereas the
other regards it as online ADR and
essentially applies existing 'offline' ADR
techniques to an automated environment.
For the novice to the subject of ODR,
whether academic, practitioner or student,
there is an ever-growing and indeed
daunting array of service providers, dispute
resolution schemes, legislation (both national
and transnational), writings and
commentaries with which to contend.
There is a need for a study that draws
together diverse strands of theory, practice
and sources without overpowering the
reader. This new book therefore arrives on
the scene at a most opportune time. It is
the end product of an interdisciplinary
research study carried out by the Private
International Law Department of the Law
School and the Informatics Center at
Geneva University, Switzerland. Arcane
academia this book is not, however, but a
meeting of the worlds of academe and
legal practice. Whilst both authors are
associated with Geneva University's Law
School - Gabrielle Kaufmann-Kohler is
Professor of Private International Law and
teaches international dispute resolution,
while Thomas Schultz is a Research Fellow
and doctoral candidate - the book pays due
attention to matters of practical interest to
lawyers involved in ODR. This comes as no
surprise, given that Ms Kaufmann-Kohler, a
partner with the Geneva office of Swiss
[2006] Asian DR 39 E](ViewImageLocal?handle=hein.kluwer/asidpurv0008&div=14&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Already a HeinOnline Subscriber?
profiles profiles most
Online Dispute Resolution: Challenges for Contemporary Justice
Already a HeinOnline Subscriber?
profiles profiles most