Alternative dispute resolution in IT matters, in UK

Daniel Djanogly was interviewed by ITweek, UK about experts in alternative dispute resolution are a popular way to resolve disputes between conflicting parties in technica cases:

So what exactly is expert determination and how does it differ from other methods?

This is one of a number of private dispute resolution methods collectively referred to as alternative dispute resolution (ADR). Other ADR methods include arbitration and mediation.

In expert determination an independent expert is asked by the disputing parties to decide one or more issues between them. The experts are required to use their knowledge and experience to reach a decision based on their own investigation of the issues. The experts must act fairly and the parties must agree to be bound by the decision.

In England and Wales arbitration is supported and controlled by the Arbitration Act 1996, which supports the enforceability of arbitration awards locally and internationally. There is no similar statutory involvement in expert determination.

In arbitration, fairness is formalised by the Arbitration Act. The arbitrator can only undertake an investigation if permitted by the parties and must share the results with the parties. Unlike the arbitrator, the expert is not immune from actions for negligence. In mediation, the mediator helps the parties arrive at their own settlement.

Are there particular types of dispute that suit expert determination?

Expert determinations tend to be applied to technical disputes. The expert is usually chosen for their expertise. The types of dispute for an accountant acting as expert include: share/business valuation disputes; disputes in relation to completion accounts; deferred consideration disputes following a sale of a business; profit share disputes in partnerships and joint venture agreements; and disputes about the loss of profits from breach of contract.

There can be numerous subsidiary disputes in connection with facts and the interpretation of words, which may be outside the expertise of the expert.

Together with other procedural considerations, the expert may need to agree arrangements to enable these matters to be dealt with in a way that does not lead to the validity of his award in respect of the substantive issue(s) being undermined.

How are appointments as expert made and what happens if no agreement can be reached?

A dispute resolution clause may be included in a contract, for example in a sale and purchase agreement for a company, which requires that an expert is appointed to resolve the dispute by expert determination.

If the parties to the agreement have not named the expert, or they are unable to agree on an expert, the contract may provide that the appointment is made by the president of a particular professional body from among its members.

Alternatively, there may be no pre-existing contractual provision for the appointment of an expert to determine the dispute. The parties may decide to use expert determination to solve the dispute.

How does the whole process work and what can the parties expect in terms of fees?

The initial stage of an expert determination assignment involves completion of the engagement formalities and agreement of the expert’s powers. The expert will check whether these are sufficient and, if not, seek to agree those necessary to fulfil their mandate. Continue reading Alternative dispute resolution in IT matters, in UK

What is (and isn`t) ODR – Online Dispute Resolution?

Jason Krause, ABA Journal online, wrote a really interesting article about ODR. These are some of the most interesting ideas about it:

– The American Arbitration AssociationAAA – says ODR is used in only a small percentage of all cases settled, but it has seen recent growth. In 2006, 3,000 of the 160,000 cases the AAA handled were done digitally.

ODR, Online dispute resolution is a broad category: Any mediation, ar­bitration or dispute resolution that takes place outside of court and at least partially online qualifies. It differs from alternative dispute res­olution, which refers to processes outside governmental jurisdiction. ODR can mean anything from e-mailing documents and evidence to using videoconferencing to bring the sides together. And it has been most effective in international or long-distance disputes involving technology issues. Continue reading What is (and isn`t) ODR – Online Dispute Resolution?

OECD urges to overhaul e-consumer dispute resolution – ODR or ADR

OECD urges to overhaul e-consumer dispute resolution – ODR or ADR

OECD countries have agreed a new approach to better protect the rights of consumers and make online shopping safer. They call on national authorities and business to make it easier, cheaper and quicker for people to resolve complaints and get compensation when they are unhappy with goods or services they have bought. The OECD member countries are: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States. The Commission of the European Communities takes part in the work of the OECD.

The OECD Recommendation on Consumer Dispute Resolution and Redress offers a roadmap for consumer protection agencies to address the practical and legal obstacles that many consumers face when trying to exchange goods or get their money back from firms, in their own country or abroad.

Most OECD countries already have laws or self-regulated schemes to help consumers, ranging from small claims courts to credit card protection and collective action lawsuits. But most of these were designed before e-commerce took off and are poorly suited to handling cross-border complaints. The Recommendation advises countries on steps they should take to update their laws to take into account these new developments.

It also calls on member countries to develop bi-lateral or multi-lateral arrangements in order to improve international judicial co-operation and use technology more effectively, making it easier to share information across borders.

In addition to a framework that details the basic elements necessary to an effective consumer dispute resolution and redress mechanism, it highlights the need for countries, both at a government level and via consumer protection agencies, to tell consumers who to approach when they have a problem and what they can do to resolve it. Companies should also set out clear, simple policies that explain what steps customers should follow to make a complaint and then have it resolved.

Consumers should also have the right to band together to take legal action against a firm, known as “collective action lawsuits.” This is important because in most European countries even if consumers have the right to take collective action in principle, there are so many restrictions that in practice they cannot. This means that their only option is take a firm to court on their own, which is usually too expensive for most people to even consider.

The Recommendation builds on a substantial body of OECD work carried out over the past decade on consumer policy issues. These include the 1999 OECD Guidelines for Consumer Protection in the Context of Electronic Commerce (www.oecd.org/dataoecd/18/13/34023235.pdf), the 2003 OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders ( www.oecd.org/dataoecd/24/33/2956464.pdf) and a 2005 Report on Consumer Dispute Resolution and Redress in the Global Marketplace (www.oecd.org/dataoecd/26/61/36456184.pdf).

See the full text of the Recommendation. For further information, journalists are invited to contact Peter Avery, OECD’s Science, Technology and Industry Directorate (+ 33. 1. 45. 24. 93. 63).

For furher information, see www.oecd.org/sti/consumer-policy

Seventh annual online dispute resolution Cyberweek

Seventh annual online dispute resolution Cyberweek

The Center for Information Technology and Dispute Resolution at the University of Massachusetts (CITDR) invites you to participate in the seventh annual online dispute resolution Cyberweek.

This is an all-online Web based conference with no fee for participation and registration. A few of the opportunities planned for Cyberweek include: Continue reading Seventh annual online dispute resolution Cyberweek

Litigation: Arbitration online

A lot of dispute resolution business comes to the UK. Between 6,000 and 8,000 cases find their way here each year for arbitration or other forms of mediation, such as ADR. At least half of this is related to shipping industry disputes, processed in the UK on behalf of Lloyds of London, but there is a significant amount of commercial dispute resolution too.

Kieran Flatt asks Alan Connarty, director of operations at the Chartered Institute of Arbitrators, why his organisation is championing the cause of electronic dispute resolution in some cases. Continue reading Litigation: Arbitration online

ODR Symposium at Tilburg University (The Netherlands), 7 december 2004

Online Dispute Resolution: a Technical Solution for Conflicts

Tuesday 7 December 2004, 14:00 – 17:00 at Tilburg University, Building A, Room AZ 186
ICTs have the potential to enhance and revolutionize conflict resolution mechanisms by making these processes more efficient and cheaper. The lectures will give an in-depth introduction to the emerging field of Online Dispute Resolution (ODR) and will discus the benefits of and challenges for ODR technology. Continue reading ODR Symposium at Tilburg University (The Netherlands), 7 december 2004

International Commercial Arbitration. Future Courses: Singapore and Oxford

International Commercial Arbitration. Future Courses: Singapore and Oxford

Events and Courses on A Colleague writes “Diploma in International Commercial Arbitration: Singapore, 5 -13 January 2004 & Balliol College, Oxford 18 – 26 September 2004

This Diploma is considered the flagship of the Chartered Institute’s international arbitration training.
ADR/ODR
Launched by the Chartered Institute of Arbitrators in 1995 it has more than 200 diplomates in many countries including, Australia, New Zealand, Hong Kong, Singapore, Malaysia, Canada, the USA, Nigeria, France, Switzerland, Israel, Ireland, England and Scotland. Continue reading International Commercial Arbitration. Future Courses: Singapore and Oxford

Mediators Wanted – San Francisco

Online Dispute Resolution News Ken writes “Law school graduates with extensive ADR experience and credentials are sought to join a neutral panel in the San Francisco Bay Area. The panel is part of a new dispute resolution company backed by individuals with a strong background in the alternative dispute resolution industry. Continue reading Mediators Wanted – San Francisco

European Commission Public Hearing on ADR – Brussels, 21 February 2003 –

The European Commission presented on 19 April 2002 a Green Paper on Alternative Dispute Resolution in civil and commercial law.

Many organisations expressed they interest in this Green Paper. Most of they have directly participated in the debate launched by the Green Paper, by submitting comments on it. The European Commission would like to thank them for they contribution. Continue reading European Commission Public Hearing on ADR – Brussels, 21 February 2003 –