Online Arbitration and the Statutes

The Uniform Arbitration Act (1990), in force in six provinces (and passed years ago in PEI but never proclaimed in force), sets out what were then modern rules for the conduct of arbitrations, with powers of arbitrators spelled out in default of agreement by the parties, and with restrictions on court intervention in the proceedings, as well as enforcement provisions. So far as I know, it works fairly well. (Ontario had a bit of controversy a few years ago about its application to family arbitrations conducted under religious law, and the statute was amended to better harmonize with family law principles generally.)

BC has a modern statute of its own similar to the Uniform Act, and the other common law provinces have something based on the English Act of about 1890.

All the provinces in Canada, and I think the territories, have implemented the UN Model Law on International Commercial Arbitration and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

What happens to the arbitration statutes when the arbitrator is a machine? Is online dispute resolution provided in a mechanized way still an arbitration for the purposes of these statutes? Is the jurisdiction of an arbitrator the same? Should the courts show the prescribed deference to a computer? Should the grounds for review be the same, and the ease of enforcement of an award?

I would think that online DR that simply makes a human being available by remote communications, as does the ADR Chambers, for mediation at least, would not be a problem, except of course to decide whose law applies. But if there is a greater degree of automation than this, and some part of the argument + decision process is done via computers, is it the same?

I ask on the eve of the Vancouver conference on ODR in consumer disputes, in part because consumer disputes will have to be resolved in automated ways if the resolution is to be economical, assuming that they are generally for smallish amounts. (The UNCITRAL/Pace/Dickinson colloquium on ODR in March 2010 heard that the average consumer dispute was worth between $100 and $150.) Maybe those fortunate enough to attend that conference will let us know what they say on the point…

UNCITRAL has decided to consider ODR as a new topic for a working group, which will meet for the first time in December. The background paper on the topic does not discuss my question, but the meetings will eventually have to do so, surely.

Any ideas? Will statutes need to be amended? Will courts and parties muddle through?

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Comments

  1. I haven’t done any research on this, but I wonder if there are cases where people agreed to resolve their disputes on the basis of a coin toss.

  2. I doubt that people will try to use the Arbitration Act to (a) select the coin, (b) dispute the coin’s jurisdiction to decide the dispute, (c) claim that the coin was wrong in law. On the other hand they might want to claim bias or unfair procedure, or to enforce the coin’s award.

    My impression has been that ODR does not operate on the basis of chance. I don’t think a dispute resolution mechanism that does operate on that basis would be considered arbitration. However, I can imagine people making a binding contract to abide by the results of a coin toss, and assuming consideration (who keeps the coin?), why would that not be enforceable?