The Lawyers New Tool?
Does on-line dispute resolution have a role to play in commercial disputes? Gregory Hunt of the Chartered Institute of Arbitrators says that it does. It makes sense that consumers who buy online, and businesses who trade online, will want to have their disputes resolved online.
Some say that Online Dispute Resolution (ODR) is a new form of alternative dispute resolution (ADR), actually it is simply the tool which helps the lawyer, the arbitrator, the mediator and the parties to reach their resolution solution.
Consumers are becoming more and more accustomed to buying online, and as e-commerce continues to grow online arbitration schemes can provide increased protection to online shoppers.
ODR allows the parties to submit their cases through encrypted email and keep track of their case through a secure web page, which is dedicated to the dispute by the Institute.
The first independent online consumer arbitration scheme in Europe was developed by the Institute with Ford Europe, and this paved the way for other organisations involved in trading online with consumers to follow suite.
The model was used to develop a scheme with the UK Consumer’s Association’s Which Web Trader Trustmark Scheme, and for the European Extra-Judicial Network in association with the DTI and the European Commission. It has also been used to develop an online service with Association of British Travel Agents (ABTA) for the benefit of the travel industry and consumers.
Broadly the Chartered Institute appoints a trained and independent arbitrator who is an expert in the online retailing arena. The whole process is conducted online, with both parties’ submitting documents from which the arbitrator will make the decision. The arbitration will take a maximum of 3 months (usually less for travel cases, on average 7-9 weeks) and, if the complaint is found in favour of the consumer the cost will be refunded.
Riccardo Nardi, head of legal services & company secretary of ABTA was involved in setting up the scheme. He says that it has increased efficiency and reduced cost for the business but adds that it is a matter of group reputation.
“In today’s environment a business that takes money from consumers via state of the art web sites but requires those with problems to progress these by traditional means, has failed its’ consumers.”
Building on the use of ODR in business to consumer disputes the Institute is also working on a number of initiatives in the commercial arena. Most significant is an arbitration scheme with Dubai Technology, Ecommerce and Media Freezone (TECOM), covering domestic and international disputes within the TECOM Zone.
In this type of situation where the parties are spread across a number of jurisdictions ODR is vital, as it allows the parties and the Tribunal to communicate quickly and cost-effectively regardless of their location.
One concern for lawyers is the question of the enforceability of awards made online. To this end, the Institute has have begun discussions to create a scenario to test this out in which an ODR based arbitration award made in the UK is challenged by one of the parties, a French travel company. A French judge will be “appointed” to consider the enforcement request as if it has been filed in a French court, and his report will deal with the issues to give an indication of the ramifications of such an action.
ODR, inevitably, reflects the advantages of ADR but with added pace, value and ease of access: It is ideal for resolving ebusiness, multiple jurisdictional or cross-border disputes; it helps preserve market reputation; provides a wide range of settlement solutions and vitally, for businesses and consumers alike, it is cost-effective.
ODR is here to stay.
By Gregory Hunt
Manager, Dispute Resolution Services, The Chartered Institute of Arbitrators”
Year 2002
