Establishing a Global ODR System for Cross-Border Online Transactions for the Sale of Goods

This chapter is from “Online Dispute Resolution
Theory and Practice,” Mohamed Abdel Wahab, Ethan Katsh & Daniel Rainey ( Eds.), published, sold and distributed by Eleven International Publishing.
The Hague, Netherlands at: www.elevenpub.com.

For the last couple of decades, Online Dispute Resolution (ODR) experts have been creating protocols, standards and agreements for the creation of ODR systems that could resolve low-value disputes that extend beyond regional borders. To the dismay of many in this community, these various efforts never manifested into a wide-spread program offering redress to parties engaged in cross-border commercial activity. The consequent results to
the various stakeholders are clear.

Outside a handful of payment intermediaries, consumers have no practical legal protections if they decide to buy cross-border, and, as a result, they do not, to the detriment of consumers and businesses. Businesses have lost market opportunities because the legal risks and associated costs are too great.

The domestic legal redress options that exist for low-value disputes are draconian when
considering the pulse of the global marketplace and rate of continuous technological
innovation and application.

Consequently,markets are isolated and practical and effective
redress for consumers and businesses that do engage in cross-border exchange is practically
non-existent.

This chapter proposes that the question of whether the creation of a widespread cross-border redress system is necessary and possible is past history. Rather, the
pertinent questions for this decade and beyond concern the scope of such a system, the legal instruments needed to support the system, the logistics and technological building
blocks of the system, and identification of the appropriate players that will alter traditional
notions of redress to obtain “rough justice”.

ODR is the progressive option to fill the
current legal and marketplace gap. It represents a dynamic process that can evolve with
the changing marketplace and technological opportunities while preserving the states,
individuals and merchants interests.

ODR for high-volume, low-value cross-border e-commerce is also the Petri dish to
test new possibilities to address the changing perspectives on the role of the judiciary in
providing redress in the new technologically-driven globalized marketplace, as well as
redress in the context of particular domestic law disputes where it is clear traditional systems
either no longer address the current needs or even exist.

This chapter advocates the position that discussions surrounding the adoption of traditional mechanisms and legal constructs to future marketplaces reflects obsolete thinking
and suggests that we must fundamentally challenge the lens through which we see the legal
world. I propose that concepts of redress – including the systems and law in which we
operate – must change to reflect the merger between the physical and virtual world.

This
chapter firstly explores the changes that catalyzed this new frontier, namely the existence and role of internet intermediaries in the online commercial marketplace; secondly, initiatives by inter-governmental agencies and NGOs to provide legal instruments and protocols
to support regional and global ODR mechanism; and thirdly, potential challenges in the
creation of a global ODR mechanism.

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Vikki Rogers

Vikki Rogers is the Director of the Institute of International Commercial Law at Pace Law School. She teaches and advises in the areas of international sales law, international arbitration and online dispute resolution (ODR) and is regularly invited to speak on such topics. She also maintains the award-winning online CISG… MORE >