What should the ideal odr system for consumers look like
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What should the ideal ODR system for consumers look like? PowerPoint PPT Presentation


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What should the ideal ODR system for consumers look like?. Dr Julia Hörnle CCLS, Queen Mary, University of London [email protected] Two main messages. Two obstacles-one compromise: enforcability of consumer arbitration vs higher due process

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What should the ideal ODR system for consumers look like?

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What should the ideal ODR system for consumers look like?

Dr Julia Hörnle

CCLS,

Queen Mary, University of London

[email protected]


Two main messages

  • Two obstacles-one compromise: enforcability of consumer arbitration vs higher due process

  • Complex puzzle with many jigsaw pieces, but funding-> spreading of the risk


The continuum: mediation & arbitration

  • A skilled mediator can settle a significant percentage of disputes

  • But not all disputes lend themselves to a compromise

  • Mediation in the shadow of the law -> in the shadow of binding dispute resolution?

  • Mediation is an (important) filter, not an alternative


Fairness

  • Principle of party autonomy and waiver of some rights

  • Commercial arbitration subject to lower due process standards

  • Confidentiality

  • Exacerbating power imbalances

  • Consumer arbitration must comply with ‘higher’ due process standards than traditional arbitration

  • Balance between efficiency and fairness


Enhanced due process

  • Applying the weaker party’s mandatory laws

  • Independence and impartiality of the arbitrator

  • Independence of the institution

  • (Proportionate) fair hearing

  • Reasons for decisions and transparency

  • Limited judicial review/appeal??


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


How to bring the parties to arbitration??

  • Post dispute? Encouragement/Compulsion

    • Platform, marketplace

    • Payment provider referral, escrow

    • National enforcers, consumer protection agencies?

      • 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?


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?

  • Combine notice & take down with arbitration for hosted content?- a new model for immunity for hosting?


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?


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


The puzzle...

  • And its jigsaw pieces....

    • 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


The book to the film....

  • “Cross-border Internet Dispute Resolution” published by Cambridge University Press, 2009


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