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.
The Internet is a powerful technology that enables fast communication, both internationally and locally, and changes behaviors that involve the use and processing of information. Cyberspace, as a consequence, has become a new realm of commerce and a market with various kinds of transactions using acronyms such as: C2C, B2C, B2B, C2B or M2B.
The Internet removes traditional barriers between “offerors” (producers, sellers, etc) and “offerees”
(clients, users, consumers.). Time, geographical distance and language are no longer obstacles to trade and, consequently, cross border disputes have also increased.
In this environment, courts have been losing effectiveness in handling the needs of parties because costs are too disproportionate and proceedings long and cumbersome. Online Dispute Resolution (ODR) mechanisms have emerged, therefore, as a natural response to this
international process with the aim of providing an effective way to overcome the existing gap.
The European Union Communication from the Commission on The Out-of-Court Settlement of Consumer Disputes of 1998
clarified the scope of challenges consumers face. In
brief, it recognized that there are three possible ways of improving access to justice:
(i) simplification and improvement of legal procedures,
(ii) improvement of communication
between professionals and consumers,
(iii) and the use of out-of-court procedures to settle
consumer disputes. Most importantly, it indicated that “far from being alternatives, these
three approaches are fully complementary”.
However, a fundamental difference distinguishes the first approach from the other two. While the first approach remains within
the traditional framework of the judicial settlement of disputes and aims to improve the
existing systems, the other two remove these disputes from the judicial arena wherever
possible. This approach can assist us in drawing the initial boundaries of ADR/ODR