embraced as a solution to these disputes, which could not be dealt with using
traditional resolution mechanisms. In contrast to the success of the NY Convention, UNCITRAL’s work on ODR has left much to be desired, as little progress
was made and, finally, the work was terminated in 2016 with the result of
producing technical notes on ODR, the meaning and nature of which are somewhat unclear. However, UNCITRAL’s work sheds light on the difficulties
of drafting cross-border Convention instruments for ODR and thus demonstrates the shortcomings of state-based models in governing dispute resolution
technology.
From the beginning, in 2010, the working group’s efforts encompassed both
business to business (B2B) and business to consumer (B2C) disputes. By the
time the ambitious unification project had begun, it had already become clear
that one of the key issues at hand consisted of the policy differences between
countries which accept pre-dispute consumer arbitration and countries which do
not.
58 However, it was agreed that arbitration is a necessary part of ODR,
although cases should primarily be settled without an arbitration phase. The
acceptance or rejection of pre-dispute binding arbitration in B2C cases reflects
the reality of the online market. In the USA, in which market leaders of
e-commerce such as eBay and Amazon.com are located, consumer arbitration is
accepted and chargebacks are often used as enforcement alternative. In contrast,
national legislations in EU Member States do not generally allow pre-dispute
consumer arbitration, and, as EU established its own regulatory framework for
ODR based on this rejection, the contrast between jurisdictions was further
emphasised.
Later, an attempt was made to reconcile these differences of opinion by
establishing a two-track system, whereby two different sets of rules would be
developed to address the different needs regarding enforceability. The two-track
system was introduced in November 2012. This system resolved the tension
between pro- and contra-arbitration positions by separating non-binding and
binding ODR rules into two different tracks.
59 The binding arbitration track
would be applicable to B2B disputes, and to B2C disputes in jurisdictions where
binding pre-dispute arbitration was accepted. Thus, in track 1 the parties would
have agreed at the time of purchase that any dispute would be resolved in an
ODR procedure which would end in a binding arbitration award. The award, in
turn, could perhaps be enforced through the NY Convention, although this is
still somewhat unclear. Only one click would be needed, the click which
simultaneously completes the purchase and agrees to the binding arbitration
clause. In track 2, binding arbitration would still be possible, but only if the
consumer accepts it after the dispute has arisen. So, both tracks would start off
with facilitated negotiation, but the difference would be that there is a second
click for parties in contra-arbitration jurisdictions: a click to opt-in for binding
arbitration after they have failed to reach an amicable solution earlier.
However, the two-track system had its own flaws, such as the difficulty of
determining which track a dispute belongs to and what would be the point of
reference for determining whether a certain B2C dispute is within a non-arbitration
126 Three quests for justification
traditional resolution mechanisms. In contrast to the success of the NY Convention, UNCITRAL’s work on ODR has left much to be desired, as little progress
was made and, finally, the work was terminated in 2016 with the result of
producing technical notes on ODR, the meaning and nature of which are somewhat unclear. However, UNCITRAL’s work sheds light on the difficulties
of drafting cross-border Convention instruments for ODR and thus demonstrates the shortcomings of state-based models in governing dispute resolution
technology.
From the beginning, in 2010, the working group’s efforts encompassed both
business to business (B2B) and business to consumer (B2C) disputes. By the
time the ambitious unification project had begun, it had already become clear
that one of the key issues at hand consisted of the policy differences between
countries which accept pre-dispute consumer arbitration and countries which do
not.
58 However, it was agreed that arbitration is a necessary part of ODR,
although cases should primarily be settled without an arbitration phase. The
acceptance or rejection of pre-dispute binding arbitration in B2C cases reflects
the reality of the online market. In the USA, in which market leaders of
e-commerce such as eBay and Amazon.com are located, consumer arbitration is
accepted and chargebacks are often used as enforcement alternative. In contrast,
national legislations in EU Member States do not generally allow pre-dispute
consumer arbitration, and, as EU established its own regulatory framework for
ODR based on this rejection, the contrast between jurisdictions was further
emphasised.
Later, an attempt was made to reconcile these differences of opinion by
establishing a two-track system, whereby two different sets of rules would be
developed to address the different needs regarding enforceability. The two-track
system was introduced in November 2012. This system resolved the tension
between pro- and contra-arbitration positions by separating non-binding and
binding ODR rules into two different tracks.
59 The binding arbitration track
would be applicable to B2B disputes, and to B2C disputes in jurisdictions where
binding pre-dispute arbitration was accepted. Thus, in track 1 the parties would
have agreed at the time of purchase that any dispute would be resolved in an
ODR procedure which would end in a binding arbitration award. The award, in
turn, could perhaps be enforced through the NY Convention, although this is
still somewhat unclear. Only one click would be needed, the click which
simultaneously completes the purchase and agrees to the binding arbitration
clause. In track 2, binding arbitration would still be possible, but only if the
consumer accepts it after the dispute has arisen. So, both tracks would start off
with facilitated negotiation, but the difference would be that there is a second
click for parties in contra-arbitration jurisdictions: a click to opt-in for binding
arbitration after they have failed to reach an amicable solution earlier.
However, the two-track system had its own flaws, such as the difficulty of
determining which track a dispute belongs to and what would be the point of
reference for determining whether a certain B2C dispute is within a non-arbitration
126 Three quests for justification