Delivering due process and procedural efficiency at low cost: The grail quest of international online arbitration

Abstract

Designing an online arbitration procedure which delivers the cornerstone requirements of efficiency, value and fairness has been described as the ‘grail quest’ for online dispute resolution (ODR). Focusing on the incipient global legal framework for both business-to-consumer (B2C) and business-to-business (B2B) arbitration, this paper explores whether current due process or consumer protection laws might be preventing the creation of an international system of binding low-value online ODR. Intending to stimulate innovation in this nascent industry, evaluation is made of the unsuccessful efforts to develop a transnational online arbitration model at the United Nations Commission on Trade Law, the newly launched European Union online dispute resolution platform, and the extant Uniform Domain Name Dispute Resolution Policy.

Through comparison of EU and US approaches to mandatory consumer arbitration clauses, it questions whether such clauses would need to become enforceable ex ante before an international consumer arbitration system can ever be fully fledged. It also explores the minimum procedural requirements for low-value B2B and B2C arbitration and, as such, may be of great interest to dispute resolution entrepreneurs, professionals and regulators wishing to capitalise on the growing millions of high-volume low-value cross-border legal claims not being internally managed by online intermediaries or service providers. By reviewing various developments in the industry, such as fast-track arbitration and consumer ODR systems, it will attempt to resolve the ever-present dilemma of maintaining each fairness and efficiency within an affordable and expedient online arbitration process. Naturally, therefore, various elements of online arbitration procedural design are closely examined, appraising matters such as documents-only hearings, fees & funding, document disclosure, time limits, transparency, award reasoning and applicable law.