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."