Author: Ijeoma Ononogbu, Managing Director, Dispute Resolver Consultancy
The internet has forever changed how the human race conducts business. In the ever-increasing use of online communication, this is not surprising. There is a rise in the use of an online facility for the resolution of disputes.
As such, online dispute resolution (ODR), a form of alternative dispute resolution (ADR) has shown the possibilities with technology as evident in online banking, online shopping, and online financial trading. ODR is the evolving frontier in dispute resolution and has been in use by some multi-international companies. This is as seen on platforms such as Amazon, eBay, PayPal. This entails the use of communication of information and processing of the information to arbitrate, facilitate, negotiate, meditate, and conciliate online.
These systems are important because they ensure a favorable environment in the resolution of online disputes, as they are faster, easier, and inexpensive. As a result, this fosters a good platform for the emergence of agreed rules and standards 1.
As such, the internet has ensured that businesses and consumers are able to engage in transactions globally without regards to geographic limitations. Consumers constitute a majority of the online population, most generated by business-to-business (B2B) transactions 2. Due to the surge in internet usage by businesses and consumers, (B2C) revenue has grown astronomically. This has caused the recent growth in B2B and B2C. As such, the number of Online Dispute Resolution (ODR) providers has increased equally.
Consequently, organizations and companies providing online mediation (e-mediation) and online arbitration (e-arbitration) methods for the resolution of e-commerce disputes have significantly increased 3.
The development of ODR, through online courts, came into existence in 2002. In the United Kingdom, small businesses can make small claims, such as actions against someone who is being owed money, and where there is a refusal by the person who owes the money to pay. A court claim for money is one of the small claims, which use the online service commonly known as ‘small claims court’. The UK e-Mediation service is seen as one of the successes of resolving disputes online. Obviously, in an online era, the use of the e-Mediation service is a better alternative to mediation. This is done by logging into the service and imputing the required information accordingly.
In the same vein, online arbitration, which is currently at its infancy, is a matter of free decision. With each case being dealt in the light of practical expediency, and decided in accordance with the ethical stance of its circumstance. E-arbitration is similar in some ways to conventional arbitration because both are substitutes for proceedings in a law court. The difference between arbitration and e-arbitration is the ability of e-arbitration to transcend most areas that have been plagued by conventional arbitration. Such as jurisdiction, flexibility, cost, and time, through its use of technology all through proceedings, except the qualified human arbitrator who gives the arbitral award. In this regard, e-arbitration is seen as a substitute for arbitration. The law is a tool, not an end in itself. Like some tools, in this instance, a replacement is needed to serve our purpose efficiently and effectively in our technological world. This is where e-arbitration becomes inevitable in dispute resolution 4.
E-arbitration works in conceivable ways. There is the requirement for mutual agreement by parties to the terms and conditions of having their dispute resolved online by an e-arbitrator. Electronic commerce is experiencing rapid growth and development, especially in light of the COVID-19 pandemic. The pandemic has made it easier for legal practitioners to explore extensively the use of technology in the resolution of disputes, in this scenario the use of electronic arbitrator commonly referred to as an e-arbitrator. This is possible with the provision of the dispute details, the entire facts of the case, as well as an upload of evidential documents and photos to support claims. Herein, e-arbitrator sits in the background, goes through the materials provided, and with the use of information provided, invites parties to respond. In time, the e-arbitrator answers questions online and a signed arbitration award is issued. The online arbitral process is similar to the kind of arbitration practiced offline or in classical alternative dispute resolution (ADR). Although e-arbitration raises a few concerns such as can the parties become properly engaged through electronic channels? will the parties be able to provide electronic evidence in support of their claims? these and many more are often asked and the response to the questions is yes. This can be seen in the way Shenzhen Court of International Arbitration Centre (SCIA) handled the backlog of arbitration matters during the peak of the COVID-19 pandemic. Reportedly, the (SCIA) resolved disputes electronically with the application of e-arbitration in its bid to resolve urgent disputes in a timely manner. The emergence of e-arbitration has shown that international commercial arbitration law can cope effectively with the peculiarities of electronic commerce, regardless of the challenges and impact on the method of dispute resolution.
I represented the Chartered Institute of Arbitrators as the sole delegate of the UNCITRAL Working Group on online dispute resolution. Consequently, I was one of the legal professionals who submitted the draft document on online dispute resolution to the General Assembly. Thereafter, on the 13th December 2016, the United Nations General Assembly endorsed the UNCITRAL Technical Notes on Online Dispute Resolution 5. Thereby, providing a document that specifies the conduct of electronic business between B2B and B2C. Arbitrators globally are aware of the many sources of international commercial arbitration and as a result, will often make reference to the UNCITRAL Model Law on Electronic Commerce 6. Following the COVID-19 pandemic, the interest in online dispute resolution is apparent, though evolving rapidly. Many organizations are keen to be service providers on online dispute resolution. However, the successful providers will be the ones that give the electronic arbitrator practitioner and disputant optimal value for time, resources, and delivery.
- Ethan Katsh ‘Online Dispute resolution: Some implications for the Emergence of Law in Cyberspace1’ <http://www.tandfonline.com> last accessed 8 May 2020
- Stewart, Karen, Matthews, Joseph ‘Online Arbitration of Cross-Border, Business to Consumer Disputes’ <www.heinonline.org> last assessed 8 May 2020
- Ononogbu, Ijeoma ‘Transformation of Dispute Resolution in Africa ‘ <International online dispute resolution journal> last assessed 20 June 2020
- Stewart, Karen, Matthews, Joseph ‘Online Arbitration of Cross-Border, Business to Consumer Disputes’ <www.heinonline.org> last assessed 21 June 2020
- United Nations Commission International Trade Law Working Group Conference on Online Dispute Resolution at the United Nations headquarters NewYork 2016
- United Nations Conference on Trade and Development, Dispute Settlement, 5.9 Electronic Arbitration 2003