Online alternative dispute resolution as a solution to cross-border electronic commercial disputes

摘要

Electronic commerce is important,and perhaps,inevitable. Thus to consider the legal implications of the growth and development of electronic commerce is essential.However, the lack of suitable dispute resolution mechanisms in cyberspace will constitute a serious obstacle to the further development of electronic commerce. Bearing this in mind, this thesis argues that when Alternative Dispute Resolution (ADR) moves to cyberspace particularly arbitration and mediation as the main types of ADR, the form of online alternative dispute resolution (OADR) can maximise the growth of e-commerce. However, in analysing OADR, one must contemplate primarily the value of fair process which OADR solutions are subject to, and the value of efficiency which OADR solutions are seen to achieve. From this perspective, a big challenge for traditional dispute resolution processes such as ADR, will be to adapt to the internet and capitalise on the new possibilities it presents. Another big challenge will be to maintain the integrity and meaning of dispute resolution processes as they move online. But perhaps the greatest challenge will be to design an Online Alternative Dispute Resolutions system which represents an effort at balancing,on the one hand, the need to provide effective mechanisms that increase access to justice, without which there seems little point in introducing the system, and, on the other hand,the need to provide just and fair administration of OADR processes without which the OADR outcome(s) will be cast in doubt. This thesis concludes that OADR is a valid proposition and perhaps the preferred system for resolving disputes that inevitably arise in e-commerce, particularly, B-to-C internet transactions disputes and domain names disputes. This is due to the fact that OADR protects internet users' interests while not harming the interest of the Information Technology (IT) industry and, most importantly, not hindering the flourishing of electronic commerce. That said, a number of legal and technical issues need to be addressed if there is to be a swift and successful deployment of OADR mechanisms in a cross-border environment.Legal issues do not constitute insurmountable obstacles to a successful operation of such schemes, but some uncertainties remain due to technological limitations. Indeed the growth of OADR is tied to the development of technology. The challenge faced by online arbitration lies more in the realm of law than technology, while the challenge faced by online mediation lies more in the realm of technology than law. This is due to the less stringent legal requirements and the crucial role of the communication process in conducting mediation. As a result, as online arbitration is faced with many legal issues, and, as online mediation requires complex and sophisticated communication schemes which are difficult and expensive to set up presently, given time, OADR will be within the ambit of legally and technically possible in the near future.