IT Law Unit @ CCLS
What should the ideal ODR system for
consumers look like?
Dr Julia Hörnle
CCLS,
Queen Mary, University of London
j.hornle@qmul.ac.uk
IT Law Unit @ CCLS
Two main messages
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Two obstacles-one compromise:
enforcability of consumer arbitration vs
higher due process
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Complex puzzle with many jigsaw pieces,
but funding-> spreading of the risk
IT Law Unit @ CCLS
The continuum: mediation &
arbitration

A skilled mediator can settle a significant
percentage of disputes

But not all disputes lend themselves to a
compromise
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Mediation in the shadow of the law -> in the
shadow of binding dispute resolution?

Mediation is an (important) filter, not an
alternative
IT Law Unit @ CCLS
Fairness

Principle of party autonomy and waiver of some
rights
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Commercial arbitration subject to lower due
process standards
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Confidentiality
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Exacerbating power imbalances

Consumer arbitration must comply with ‘higher’
due process standards than traditional arbitration

Balance between efficiency and fairness
IT Law Unit @ CCLS
Enhanced due process

Applying the weaker party’s mandatory laws
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Independence and impartiality of the arbitrator
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Independence of the institution
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(Proportionate) fair hearing
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Reasons for decisions and transparency
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Limited judicial review/appeal??
IT Law Unit @ CCLS
How to get an arbitration
agreement (pre-dispute)?

EU/EEA Unfair Contract Terms Directive
1993/13/EC
– Black List to proposed Draft Consumer Rights
Directive Annex II (c) COM (2008)/614 (3)
– English law, not binding if amount in dispute less than
£5000

US state laws, some courts finding clause
unconscionable
IT Law Unit @ CCLS
How to bring the parties to
arbitration??

Post dispute? Encouragement/Compulsion
– Platform, marketplace
– Payment provider referral, escrow
– National enforcers, consumer protection agencies?
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LEGAL OBLIGATION?
TRUST MARK
NAME AND SHAME (for example on consumer advice
website)
Examples in communications and financial sector (licensing)
– Domain Name Registrars & ICANN?
– Still an ‘arbitration agreement ‘ under the NYC?
IT Law Unit @ CCLS
How to bring the parties to
arbitration??

Asymmetrical obligation? Consumer can choose
between arbitration and litigation?

But once chosen award is binding

Who is a consumer?

How to define a power imbalance?
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Combine notice & take down with arbitration for
hosted content?- a new model for immunity for
hosting?
IT Law Unit @ CCLS
Enforcement

Enforcement of an arbitration award through the
courts- cross-border enforcement!
– Award based on a ‘compulsory’ arbitration agreement
enforceable under the NYC?
– New Convention/Regional treaties?

Extra-legal enforcement
– Same methods as mentioned above: exclusion from
marketplace, trust mark, name & shame
– Problematic?- UDRP compromise?
IT Law Unit @ CCLS
Who pays?

Concept of proportionate dispute resolution

De minimis? Not all consumer disputes can be
solved through private redress; need for public
enforcement to address wide-spread small harm

Conflict between independence of provider and
payment

Public subsidy required?

Insurance, licence fees?

Both parties should pay towards the cost
IT Law Unit @ CCLS
The puzzle...

And its jigsaw pieces....
–
–
–
–
–
–
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Non-binding forms of ADR
Payment reverse mechanisms
Insurance?
Online arbitration (but de minimis)
Due process standards
Training of arbitrators
National ombudsman/arbitration schemes, networked
through a clearing house system
– Legal and extra-legal enforcement
– New Convention?
– Litigation
IT Law Unit @ CCLS
The book to the film....

“Cross-border Internet
Dispute Resolution”
published by Cambridge
University Press, 2009