Online Resolution of E-commerce Disputes

Perspectives from the European Union, the UK, and China

verfasst von: Dr. Jie Zheng

Verlag: Springer International Publishing

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This book discusses how technological innovations have affected the resolution of disputes arising from electronic commerce in the European Union, UK and China. Online dispute resolution (ODR) is a form of alternative dispute resolution in which information technology is used to establish a process that is more effective and conducive to resolving the specific types of dispute for which it was created.

This book focuses on out-of-court ODR and the resolution of disputes in the field of electronic commerce. It explores the potential of ODR in this specific e-commerce context and investigates whether the current use of ODR is in line with the principles of access to justice and procedural fairness. Moreover, it examines the major concerns surrounding the development of ODR, e.g. the extent to which electronic ADR agreements are recognized by national courts in cross-border e-commerce transactions, how procedural justice is ensured in ODR proceedings, and whether ODR outcomes can be effectively enforced. To this end, the book assesses the current and potential role of ODR in resolving e-commerce disputes, identifies the legal framework for and legal barriers to the development of ODR, and makes recommendations as to the direction in which practice and the current legal framework should evolve.

In closing, the book draws on the latest legislation in the field of e-commerce law and dispute resolution in order to make recommendations for future ODR design, such as the EU Platform-to-Business Regulation on Promoting Fairness and Transparency for Business Users of Online Intermediation Services (2019) and the United Nations Convention on International Settlement Agreements Resulting from Mediation (2018), which provide the legal basis for ODR’s future development.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract

This chapter encompasses an introduction to the work, explains the interplay between e-commerce and ODR, presents a short state-of-the-art regarding policy initiatives and scholarly work, formulates research questions, explains the methodology and delineates the structure of the book. The author based her research on other scholarly works in ODR starting from 2001 by Katsh and Rifkin. This book is delimitated to alternative dispute resolution using information technologies in resolving disputes arising from electronic commerce transactions. The author has applied a comparative legal study of ODR among the European Union, the UK (England and Wales), and China. An empirical research has been conducted in this book by a selective study of electronic ADR agreements of website terms and ODR rules of various dispute resolution providers.

Jie Zheng

Chapter 2. Conceptual Settings

Abstract

This chapter examines the major types of e-commerce transactions and delineates characteristics of e-commerce disputes. The special feature of e-commerce disputes calls for a low-cost and efficient dispute resolution, which is usually absent in traditional litigation. Three legal principles (non-discrimination principle, technological neutrality principle, and functional equivalence principle) constitute fundamental rules regulating electronic communications, through which electronic contracts are entered into. The feature of e-commerce disputes and legal principles of electronic communications serve as a background for the discussion of ODR in e-commerce transactions.

Jie Zheng

Chapter 3. The Development of ODR in E-Commerce Transactions

Abstract

This chapter explains the connection between ADR and ODR. It also frames the discussion of ODR mechanism in the context of e-commerce transactions. This chapter firstly discusses the definition of ODR. It then depicts three stages of ODR development and various forms of ODR to demonstrate the current stance of ODR. Thirdly, this chapter examines the application of ODR from the perspectives of the EU, England and China with reference to the respective legislative framework and latest development. The chapter ends with a comparison, uncovering common features but also major differences in the ADR and ODR development among the EU, England, and China.

Jie Zheng

Chapter 4. Validity of Electronic Alternative Dispute Resolution Agreements

Abstract

This chapter ssesses both the formal validity and the substantive validity of e-ADR agreements by examining the legal requirements for e-ADR agreements under national laws. The first part of thsi chapter (formal validity requirement) focuses on the national legislation of selected jurisdictions on electronic communications to regulate electronic contracts and the cross-border recognition regime of foreign electronic signatures. The second part of this chapter (substantive validity requirement) investigates whether there is an adequate legislative protection to balance the conflict between the party autonomy of the ADR agreements and the fairness of electronic contracts. It ends with a list of common denominators of various jurisdictions in regulating the formal and substantive validity of e-ADR agreements.

Jie Zheng

Chapter 5. ODR Procedural Standards

Abstract

This chapter identifies the minimum procedural fairness guarantees for ODR and examines whether the current ODR rules are in conformity with these guarantees. This chapter answers the question to what level the lowering of procedural fairness can be justified by a cheaper and faster dispute resolution (as compared to traditional dispute resolution). In order to build the answer, the author examines three cornerstones of dispute resolution procedures: access to justice, procedural fairness and procedural efficiency. The author investigates the application of these cornerstones to three types of ODR: online arbitration, internal complaint mechanism and domain name dispute resolution. The author concludes that ODR is especially suitable for resolving disputes arising from similar types of legal relationship, clear facts and evidence, and small claims, but that three challenges remain (lack of uniform procedural rules, conflict between procedural fairness and procedural efficiency, the tension between flexibility and transparency). The chapter ends with a number of useful recommendations in regulating ODR industry and improving the quality of ODR rules.

Jie Zheng

Chapter 6. Enforcement of the ODR Outcomes

Abstract

This Chapter encompasses an analysis of public and private enforcement mechanisms in respect of ODR outcomes. The author presents an overview of the existing enforcement mechanisms and carries out an assessment of benefits and drawbacks. While public enforcement mechanism is only useful for a small number of disputes that are high in value, private enforcement mechanism (automatic execution and incentive-driven enforcement mechanism) has the potential to meet the needs of ODR with small claims but also raises legitimacy concerns. This chapter ends with a comparison between two types of enforcement mechanisms and the formulation of suggestions (improve efficiency of public enforcement and enhance the quality control of private enforcement).

Jie Zheng

Chapter 7. Conclusion

Abstract

This chapter offers a synopsis of major findings, reiterates the main challenges to the future development of ODR (deviation in cross-border recognition of e-ADR agreements, lack of procedural fairness in ODR, lack of enforceability mechanisms), and corresponding recommendations for the future ODR system design (establishing common grounds in recognizing the validity of e-ADR agreements, improving procedural fairness, enhancing enforcement mechanisms), and envisages the future development of ODR.

Jie Zheng

Backmatter

Titel: Online Resolution of E-commerce Disputes
verfasst von: Dr. Jie Zheng
Verlag: Springer International Publishing
Electronic ISBN: 978-3-030-54120-0
Print ISBN: 978-3-030-54119-4
DOI: https://doi.org/10.1007/978-3-030-54120-0