ONLINE DISPUTE RESOLUTION :
SOME REFLECTIONS ON LAW AND
PSYCHOLOGY
Dr Pablo Cortés
Senior Lecturer
School of Law
University of Leicester
Workshop: Arbitration & Psychology
Brunel University, London
24 May 2013
Outline
Online Dispute Resolution
Recent legislative initiatives:
I.
II.
– Consumer ADR
Directive and ODR Regulation
– UNCITRAL Draft ODR Rules
Psychology could inform the development of incentives
to encourage, when appropriate:
III.
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Participation in the dispute resolution process
Amicable settlements when appropriate
Out-of-court enforcement
Part I: What is ODR?
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Generally referred as ADR + ICT
The fourth party in the dispute
ODR is often the only option for dealing with ecommerce disputes, especially when they are:
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cross-border
low value
high volume
occurred online
A few success stories
Part II: Recent Legislative Initiatives
Challenges
•
•
in the growth of ODR
UNCITRAL Draft ODR Rules
EU Initiative to enhance consumer redress:
1.
2.
ADR Directive
ODR Regulation
UNCITRAL Draft Rules on ODR
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UN Commission for International Trade Law
(UNCITRAL) has the goal of developing int. law to
facilitate int. trade.
December 2010 UNCITRAL WG III issued first draft
Rules on ODR (current draft of Dec 2012)
The Rules will be complemented by
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Enforcement protocol
Requirements for third neutrals and ODR Providers
Substantive law principles
UNCITRAL Draft Rules on ODR
•
Scope of application:
– low-value
– cross-border
– e-commerce
Language will be the one employed in the contract
• Multi-step process in a two track system
•
1.
2.
3.
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Negotiation
Facilitation
Arbitration (second track only)
Enforcement of outcomes
EU Initiatives:
1. Consumer ADR Directive
•
Coverage:
Availability of ADR entities (public or private) in all
the MS of the EU
– Scope: contractual consumer complaints arising
from the sale of goods and provision of services in
the EU
* Exclusion of claims brought by traders against
consumers and claims related to health services and
higher education
–
Cont. Consumer ADR Directive
•
Legal standards
–
–
–
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Expertise, Impartiality and Independence
Transparency
Effectiveness
Fairness (incl. the principles of liberty and legality)
Information obligation (and penalties for noncompliance)
–
–
Traders must inform when adhered to an ADR entity
ADR entities must inform about their own procedures
2. ODR Regulation

ODR Platform
Hub for e-commerce complaints
 Online traders will be required to include a link
 Complaints forms in all the EC languages
 Link parties to approved ADR entities
 Case management tool
 Managed by the ODR advisors from ECCs
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Part III: Psychology and Incentives
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To ensure the participation in ODR
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Traders will always make a cost-analysis
Mandatory in specific sectors
Online label or trustmark
Feedbacks and reviews
Rank down by online browsers
Judicial cost penalties
Incentives
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To ensure an early and amicable settlement
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Effective online negotiation tool that manages parties
expectations and facilitates proactive communications
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Consumer bespoken information on their rights
Publication of model cases
Couple with effective adjudication
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Pyramidal approach
e.g. Arbitration or ombudsmen schemes
Saving the fees of adjudication
Incentives
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To ensure out of court compliance of final
decisions and arbitral awards
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Public enforcement agencies should have access to the
information inserted in the ODR Plat
Links to e-Justice –i.e. fast-track online judicial processes,
e.g. ESCP and collective redress options
Collaboration with payment providers in the
enforcement of awards
Chargebacks
Black-lists/Reviews
Conclusion
•
Shift from developing judicial protection to building
ODR structures that provide consumers with real and
tangible redress
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There is a gap on socio-legal research for online
arbitration
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This is because there is a lack of successful initiatives
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The new legal framework aims to remedy this by promoting the
use of ODR
Future empirical analysis will be instrumental in helping
to design more efficient and fair online processes