United Nations Commission on International Trade Law Draft Procedural Rules for Online Dispute Resolution

As mentioned earlier this month on Slaw, the UNCITRAL Secretariat has published WP.107 for its meeting next month, setting out the first draft of a set of rules for procedure in online dispute resolution (ODR). That document is available online. With the same link you will find the report of the first meeting of the Working Group on ODR, from December 2010, to see how the group got to where it is now.

The principle of the draft rules is that they should apply readily to low-cost, high-volume disputes, so they should be simple and accessible and allow for cheap fast resolutions. For this purpose the commentary asks if their application should be limited to certain kinds of dispute (“simple fact-based disputes and basic remedies”), or should have certain kinds of dispute excluded from their scope (e.g. personal injury, intellectual property, taxation, privacy).

While the rules would apply to online transactions, would it be necessary to restrict the dispute resolution processes to those conducted online too? Some basic rules about sending and receiving e-messages may be included in the rules, or those considerations could be left for other law (like UNCITRAL’s Electronic Communications Convention) or left to ODR providers to prescribe for proceedings that they facilitate.

Essentially the rules provide for a negotiation or consultation stage, a mediation stage and a decision-making stage. It is hoped that most disputes would be resolved early. They set out what the notice of dispute is to include, including of course the grounds for the dispute and any suggested resolution, and what the response should have, including any other solutions.

After a time (should there be a time limit?), a neutral facilitator is appointed under the rules. That person represents in accepting appointment that he or she has enough time available to do a good job. The need for speed might have this person serve as arbitrator as well, if the facilitation/mediation did not succeed. Details of procedure, evidence and production of the award are left to the parties or the neutral, though a tight time limit would likely be imposed on the award itself.

The paper raises the possibility of consolidating like claims. That could make for an equivalent to a mediated class action. Is that an attractive prospect?

What do you think? Is this going in a useful direction? Do you have answers to any of the questions here, most of which are from the Secretariat, or to any of the other questions raised in the text of WP.107? It would be helpful to more than one delegation to the Working Group to have your views.

The report notes that the procedural rules will probably not be the only product of the Working Group. A set of “guidelines for ODR providers” will deal in more detail with setting up an ODR platform and making it work. The WG will discuss these guidelines at future meetings, as nothing has yet been drafted.

Note as well that the Secretariat has assembled a number of online (and other) resources about ODR, including existing systems’ rules and principles, and proposals for new systems.

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