By Carolyn A. Dubay, Associate Editor, International Judicial
Monitor and Assistant Professor of Law, Charlotte Law School
One of the key goals of codifying
private international law is to develop a global legal framework for the
resolution of cross-border disputes between private parties. For the last
several decades, much of this effort has focused on international instruments
to resolve international commercial and family disputes and to create uniform
procedures and rules relating to common legal problems relating to choice of
law, choice of forum, the taking of evidence, and the enforcement of judgments
and arbitral awards. While the international and regional instruments
developed to meet these needs have had tremendous success, their focus has been
on dispute resolution in either formal court systems or traditional
face-to-face alternate dispute resolution mechanisms (such as arbitration and
mediation). In the last few years, however, the private international law
community has begun to focus intensely on common problems associated with
international e-commerce, where low value claims make expensive formal dispute
resolution options less desirable. In short, concerns have arisen about the
absence of effective and efficient methods to resolve disputes that involve
small amounts of money, but large legal headaches. As nature and the market
abhor a vacuum, many private companies across the world turned to online
dispute resolution (ODR) over a decade ago to confront these problems, and now
the international legal community is poised to follow.
From a private international law
perspective, the impetus to develop a global legal framework for incorporating
ODR into cross-border dispute resolution mechanisms came from various proposals
put before regional and international working groups dealing with consumer
protection and international e-commerce. The Organization of American States,
or OAS, through its CIDIP VII Conference, began exploring model ODR rules for
business-to-consumer e-commerce disputes in 2006. At that time, the United
States submitted draft Legislative Guidelines on Consumer Redress Mechanisms
that proposed an ODR framework for business-to-consumer disputes among member
states. The proposal put to CIDIP VII called for an ODR initiative to promote
consumer confidence in e-commerce through faster, cheaper dispute resolution
available in multiple languages and with cross-border enforcement of any
resulting ODR awards. As this project continues, the framework contemplates the
development of a model OAS law to create a central, online location for claims
to be processed and an authority at the national level of each member state to
enforce the outcome of the process. Also in development are model rules to
govern the process for consumers to initiate and follow the ODR process.
At the UN level, the introduction of an
international legal framework for ODR is being negotiated under the auspices of
the United Nations Commission on International Trade Law (UNCITRAL). In 2010,
a working group within UNCITRAL (known as Working Group III) was tasked with
developing the framework for ODR in both business-to-business (B2B) and
business-to-consumer (B2C) transactions. Because the UN process involves a
larger number of competing legal systems with different consumer law
protections, the
International
Judicial Monitor