what should the ideal odr system for consumers look like? dr julia hörnle ccls, queen mary,...
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What should the ideal ODR system for What should the ideal ODR system for consumers look like?consumers look like?
Dr Julia Hörnle
CCLS,
Queen Mary, University of London
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CLS Two main messagesTwo 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
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The continuum: mediation & The continuum: mediation & arbitrationarbitration
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
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CLS FairnessFairness
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
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CLS Enhanced due processEnhanced 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??
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How to get an arbitration How to get an arbitration agreement (pre-dispute)?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
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How to bring the parties to How to bring the parties to arbitration??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?
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How to bring the parties to How to bring the parties to arbitration??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?
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CLS EnforcementEnforcement
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?
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CLS Who pays?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
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CLS The puzzle...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
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CLS The book to the film....The book to the film....
“Cross-border Internet
Dispute Resolution”
published by Cambridge
University Press, 2009