The ABA Task Force on E-Commerce and Alternative Dispute
Resolution was tasked to put forward protocols, workable guidelines
and standards that could be implemented by parties to on-line
transactions and by on-line dispute resolution (ODR) providers, to
cover both B2B and B2C transactions.
Its draft report makes a number of recommendations and
observations, such as the need for e-commerce businesses to place
“enhanced emphasis” on “all stages of the B2C relationship” and on
consumer education. It recommends “encouraging” participation by
merchants in e-commerce codes of conduct and “trustmark”
programmes. It calls for “appropriate emphasis” on the development
of interoperable communicating and data-sharing platforms” to
advance ODR as a means of cross-border dispute resolution.
However, OUT-LAW.COM’s John MacKenzie, a solicitor advocate, is
critical. He commented today:
"Unfortunately, this looks like a missed
opportunity. The report fails to address properly the question of
what to do if disputes actually arise. Cross-border disputes can
make for expensive court actions. On-line dispute resolution can
ease the problem. However, to date, the uptake of such services has
been very low because there is inconsistency in the approaches of
both merchants and ODR providers.
“The ABA should have used this exercise to
introduce a code for the conduct of arbitration in on-line
disputes. Such a code could be adopted by the parties through the
contracts that they enter into. Using such a code would address
jurisdictional issues, the parties having agreed to their disputes
being determined by an independent arbiter, and enforcement issues,
since most countries recognise arbitration decisions through the
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards.
“While the ABA Task Force has laid the
groundwork for developing ODR, it has not gone far enough in
resolving the problem of international e-commerce disputes."
