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RESOLUTION OF DISPUTES IN THE E-COMMERCE ENVIRONMENT Geneva 20 October 2003 Dr. Carlos Moreno Legal Adviser

United Nations Conference on Trade and Development. RESOLUTION OF DISPUTES IN THE E-COMMERCE ENVIRONMENT Geneva 20 October 2003 Dr. Carlos Moreno Legal Adviser. Basic Legal Infrastructure for Building Trust. Legal recognition of e-messages E-signatures legislation Resolution of disputes.

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RESOLUTION OF DISPUTES IN THE E-COMMERCE ENVIRONMENT Geneva 20 October 2003 Dr. Carlos Moreno Legal Adviser

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  1. United Nations Conference on Trade and Development RESOLUTION OF DISPUTES IN THE E-COMMERCE ENVIRONMENT Geneva 20 October 2003 Dr. Carlos Moreno Legal Adviser

  2. Basic Legal Infrastructure for Building Trust • Legal recognition of e-messages • E-signatures legislation • Resolution of disputes

  3. Arbitration: neutral third party who makes a decision that is binding on the parties. Mediation: neutral third party that work with the parties to find a mutually acceptable solution (not binding). Negotiation: no third party present. The parties try to resolve the problem by themselves. When unsuccessful it may be a preliminary step to arbtration/mediation. Principal Methods of ADR

  4. Online Dispute Resolution (ODR) • Online Arbitration • Online Mediation • Online Negotiation • Automated blind bidding systems

  5. The dispute resolution continuum

  6. Applicable Law/Jurisdiction • B2B: freedom of contract. • B2C • Europe: the consumer can choose. The merchant is obliged to sue the consumer in his place of residence according to the consumers’ national law. • USA: freedom unless the agreement is “unconscionable”.

  7. Types of services offered by ODR providers Source: UNCTAD questionnaire.

  8. Means of promoting ODR Source: UNCTAD questionnaire.

  9. Online and offline services Source: UNCTAD questionnaire.

  10. ODR Tools Source: UNCTAD questionnaire.

  11. Difficulties • Unlikely to use ODR unless: the merchant provides a link and agrees to participate or the government mandates and enforces participation. • Government support and usage is a must. • The cost of setting up an ODR is important.

  12. Difficulties • Promotion of ODR should be envisaged with the collaboration of experienced ODR. • The biggest difficulty is to build a long-term sustainable business plan. • Nobody uses online what they do not use offline. • Promoting ODR will prove more expensive than the technology itself.

  13. Difficulties • In many developing countries businessmen and lawyers over the age of 50 do not use computers and do not speak english.

  14. Recommendations • Organization of educational programmes aimed at promoting awareness and knowledge about ADR/ODR. • Ensure that national legislation recognizes the validity and enforceability of e-transactions and the use of out-of-court dispute settlement schemes. • Acceeding to the 1958 NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

  15. Recommendations • Promote the voluntary adherence of ebusinesses to trustmarks and reliability programs. • Give sufficient attention to the cultural and linguistic differences in providing ODR services.

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