The United Nations Commission on International Trade Law’s Working Group III on Online Dispute Resolution (ODR) met for one last time between February 29th to March 4th 2016 to put the finishing touches to UNCITRAL’s Technical Notes on Dispute Resolution, and, in the same breath, complete the mandate – or should we say revised mandate – it had been given by the commission.
As regular readers will remember, the working group was originally given a very broad mandate back in 2010. As stated in document A/CN.9/WG.III/WP.105:
“After discussion, the Commission established a working group to undertake work in the field of online dispute resolution relating to cross-border electronic commerce transactions, including business-to-business (B2B) and business-toconsumer (B2C) transactions. At that session, the Commission also agreed that the form of the legal standards to be prepared should be decided after further discussion of the topic. As to the scope of work, the Commission agreed that, although it would be feasible to develop a generic set of rules applicable to both B2B and B2C transactions, the Working Group should have the discretion to suggest different approaches, if necessary.”
For the next five years, working group members therefore worked on the drafting of procedural rules for ODR, an experiment that ended abruptly when, in February of 2015, both the US and the European Union suggested that work be abandoned since no consensus could be reached as to the content of said rules, despite the relentless efforts put forth by the secretariat and the chair to foster some sort of agreement. Some observers, including the undersigned, believed this to be the end of UNCITRAL’s foray into online dispute resolution… Yet we were wrong.
Rather than to throw in the towel, UNCITRAL decided to redefine the Working Group’s mandate to “elaborating a non-binding descriptive document reflecting elements of an ODR process, on which elements the Working Group had previously reached consensus, excluding the question of the nature of the final stage of the ODR process”. The Commission also put an expiration date on the Group’s work, stating that it had to be done by the end of its 33rd session (i.e., March 4th, 2016).
This short summary of events helps us understand why we went from ambitious procedural rules to simple technical notes or, to paraphrase T.S. Eliot’s “The Hollow Men”, how ODR will be making its way into UNCITRAL documents, not with a bang but a whimper. However, this is not necessarily a bad thing. In fact, with the evolving view of what ODR is and could be, UNCITRAL’s draft procedural rules ran the risk of becoming out-dated before their eventual adoption. Even the Technical Notes, in our opinion, reflect a view of ODR that corresponds more with the practices of first generation platforms such as ECODIR, and less with more recent endeavours that rely on artificial intelligence, knowledge management systems and computational justice.
Therefore, the content of the Technical Notes doesn’t really matter as much as their existence. In this age of sound bites and Twitter, all that is truly important is that UNCITRAL acknowledges the value of ODR sufficiently to address the topic. When, as is expected, the Commission adopts the final version of the Technical Notes during its 49th session, the headlines will simply read “UNCITRAL Adopts Notes on ODR”, not “After five year of work on ODR, UNCITRAL Working Group III has produced a non-binding laconic document that gives a somewhat antiquated view of ODR practices that will have little to no impact on current or future ODR providers but that has the merit of incorporating ODR into the UNCITRAL lexicon”.
As paragraph 3 of the notes states: “The purpose of the Technical Notes is to foster the development of ODR and to assist ODR administrators, ODR platforms, neutrals, and the parties to ODR proceedings”. While we remain sceptical that the notes will truly “assist ODR administrators, ODR platforms, neutrals, and the parties to ODR proceedings”, there is no doubt that an UNCITRAL endorsement of ODR will help foster is development or, at the very least, won’t hinder it.
So what exactly is in these notes? Supposing that the final draft as concluded on March 3rd, 2015, is adopted “as is” by the Commission, the notes should consist of twelve sections containing about 50 dispositions addressing matters such as the ODR process (negotiation, facilitated settlement and an option for a third and final stage such as arbitration or adjudication), the role of neutrals, governance, language of proceedings, etc. They also put forth values that an ODR service provider should strive towards such as independence, transparency, and offering a secure environment.
Obviously, these concepts are not revolutionary, nor is the online ADR (alternative dispute resolution) process that the notes present as their sole example of ODR. We should point out that the notes mention the fact that they do not offer an exhaustive or exclusive list of possible ODR mechanisms, but they clearly present a very classic view of what ODR is and can be. But, again, considering that, a year ago, we were writing on this very blog that we expected the Working Group’s work to come to a halt, the simple fact that this document exists is, at the very least, better than nothing. Furthermore, considering the time and effort invested in this process by delegates, observers, but mostly by the UNCITRAL secretariat members that took to drafting a document that could satisfy diametrically opposed views, it would have been very disappointing for this endeavour to end without said document to be made available to the public in one form or another. In this sense, the Technical Notes can be seen as a success.
The end of the Working Group’s mandate also marks the end of a journey for our column, as we’ve been writing exclusively on ODR for the past four years. Although we’re not saying that we shall never revisit the topic, we will, in the upcoming months, refocus our attention on other aspects of cyberjustice, a field of research that spans much further that the sole study of ODR platforms and mechanisms.