Overcoming some of the challengesseen in Online Dispute Resolution.
Online Dispute ResolutionODR essentially encompasses many forms of ADR andcourt proceedings that incorporate the use of theinternet, websites ,e-mail communications, streamingmedia and other information technology as part of thedispute resolution process.Parties may never meet face to face when participatingin ODR. Rather , they might communicate solely online.
Legal Obstacles onlineIn as much as there are obvious advantages, itschallenges is the difficult application of traditionalcontract laws to the online environment.Transactions need legal certainty both offlineand online.The reservations faced by onlinecontracts include whether it is enforceable, whatthe terms are, whose law applies in the contractand jurisdiction that governs the contract.
Challenges inherent in the use of ODR1. Legal nature -Differences in global legal systems -Difficulty in defining a global term eg ‘consumer’ -Discrepancies in global ODR mechanisms2. Technical nature -Absence of sufficient online environment and infrastructure in some Countries.3. Cultural and Linguistic nature -Lack of a universal culture and tradition.
Overcoming the challenges in ODR is possible ODR challenges can be overcome through legislations, which provide opportunities which include the use of technology in dispute resolution. In 23rd April 2008, the European Parliament formally approved, the Council’s common position in the Council’s common position on the new Mediation Directive. EC Directive of the European parliament of Council on Certain Aspects of Mediation in Civil and Commercial matters, known as Directive 2008/52/EC.
Overcoming the Digital divide The public sector through the governmental institutions, and International organisations have sought to overcome the digital divide through various means• Noticeably through working in the different regions to get over the digital divide
Current DevelopmentsThe EU out-of-court dispute resolution legislative mechanisms,there has been some significant progress.Article 17 of the E-Commerce Directive stipulates for the use ofODR, in an event of a dispute between an information societyservice provider and the recipient of the service.This provision is such that it does not hinder the useof out-of-court schemes available under national lawsfor dispute resolution.
A good exampleWith current developments of the EU out-of-court dispute resolutionlegislative mechanisms, there has been some significant progress.An example of online ADR practices in the EU, isprovided for by the Czech Arbitration Court.The Czech Arbitration Court is currently able toadminister .eu ADR proceedings in practicallyall official EU languages.
Middle EastThe Arab League Model laws by UNCITRALModel Laws on Electronic Commerce andElectronic is used as a guideline .
AfricaIn an AU Summit in 2010, a convention on digital transactions wasdrafted in 2008 and adopted in January 2012 .
America Organisation of American States (OAS)There is a proposal for the creation of a multi-state electronic system toProvide alternative dispute resolution (ADR) mechanisms such asnegotiation, facilitated settlement and arbitration for some contracts.
The CaribbeanThe Caribbean Community (CARICOM) in Its ICT 4 Development, onthe draft model laws on Consumer Protection(2008) focuseson electronic commerce.
UN MandateUnited nations Commission on International Trade Law at the 43 rdSession New York in June/July 2010 agreed that the use ofelectronic commerce is important in business transactions and theneed to distinguish between consumers and commercial parties.
Recommendations to some overcome of ODR challenges- Creation of awareness in the importance of ODR to all practitioners, especially to both lawyers and ADR experts.- Education among the consumer and businesses of the role of ODR.- Government mandate in form of directives, example as seen in the EU.- Support of ODR by International organisations- Increase number of ODR practitioners- Confidence in ODR effectiveness and efficiency in the dispute resolution process.
E-commerceE-commerce is important to business,mainly because of its speed and theconvenience it offers. The UNCITRAL Model Law on ElectronicCommerce was adopted by UNCITRAL on 12June 1996. The primary essence of theprovision, is to remove existing legal obstaclesto the enforceability and recognition of e-signatures.
Ijeoma OnonogbuSolicitor England and WalesInternational Dispute Resolution practitioner and ODR advocateBlog- www.ijeomaononogbu.netOnline Dispute Resolution Conference Prague - ODR 2012June 2012Prague, Czech Republic.