outcome of the working group falls short of the high expectations placed on its
work. Understandably, the consensus-based technical notes do not take a stand
on the question of one-or-two clicks, which issue substantiated the differences of
opinion regarding the finality of ODR decisions. The lack of consensus on finality
has not been resolved at the cross-border level and if another attempt for
regulating ODR through international Conventions is sought later, the issue
remains to be solved at that time.
Thus, UNCITRAL’s work on ODR tells us something. As the continuous
efforts of the working group over six years has provided only technical notes of
uncertain usability, the probability of developing a global ODR regime seems
highly unlikely. However, the work still gives valuable insight into the issues that
stand between the aspiration and the realisation of such a regime.
As the example of UNCITRAL’s work on ODR illustrates, it is unlikely that a
sovereignty-based framework can be established for ODR, at least for the time
being. There are many reasons for this. Firstly, the dispute resolution market has
changed significantly since the adoption of UNCITRAL’s most successful instrument, the New York Convention. The typical ODR case is not a high-value
business dispute, for which international commercial arbitration and enforcement
through state courts are the preferred resolution models. E-commerce disputes can
involve consumers and consumer protection needs to be taken into consideration.
At the same time, typical e-commerce cases are low-intensity disputes that seldom
exceed the litigation threshold in the first place. Enforcing the outcomes of such
disputes through state courts would not remove the reason why these cases were
not litigated in potentially time-consuming and expensive cross-border civil procedures. Instead of decreasing or removing the litigation threshold, enforcement of
ODR through state courts would just shift the threshold from the access to court
perspective into the enforcement phase. In order to function similarly to foreign
arbitral awards, access to enforcement through state courts requires that the
thresholds of time and expense be lowered. However, making the court system
more efficient without lowering due process standards is no small feat.
Secondly, the typical e-commerce cases delve deeper into the sphere of domestic
legislation than does commercial arbitration, as consumer protection regulation
varies significantly between different jurisdictions. The national character of consumer protection and the need for upholding sufficient redress as a means to this
end mean that we cannot leave private ODR simply as it is without regulating due
process and enforcement, as ODR may easily be the only available redress
mechanism. Thirdly, the role and consequences of private enforcement mechanisms have not been discussed at all in this context. It is unclear whether and how
private cross-border enforcement could be regulated, but it is becoming increasingly obvious that the existing way of understanding enforcement and traditional
instruments does not provide the answer.
Hence, we arrive at another dead end. Attempts to create multilateral regulatory
instruments have been fruitless, as sovereign states have not found a compromise.
It is unclear how such instruments would come about, and to what extent they
would be implemented even if an acceptable compromise could be found. National
128 Three quests for justification
work. Understandably, the consensus-based technical notes do not take a stand
on the question of one-or-two clicks, which issue substantiated the differences of
opinion regarding the finality of ODR decisions. The lack of consensus on finality
has not been resolved at the cross-border level and if another attempt for
regulating ODR through international Conventions is sought later, the issue
remains to be solved at that time.
Thus, UNCITRAL’s work on ODR tells us something. As the continuous
efforts of the working group over six years has provided only technical notes of
uncertain usability, the probability of developing a global ODR regime seems
highly unlikely. However, the work still gives valuable insight into the issues that
stand between the aspiration and the realisation of such a regime.
As the example of UNCITRAL’s work on ODR illustrates, it is unlikely that a
sovereignty-based framework can be established for ODR, at least for the time
being. There are many reasons for this. Firstly, the dispute resolution market has
changed significantly since the adoption of UNCITRAL’s most successful instrument, the New York Convention. The typical ODR case is not a high-value
business dispute, for which international commercial arbitration and enforcement
through state courts are the preferred resolution models. E-commerce disputes can
involve consumers and consumer protection needs to be taken into consideration.
At the same time, typical e-commerce cases are low-intensity disputes that seldom
exceed the litigation threshold in the first place. Enforcing the outcomes of such
disputes through state courts would not remove the reason why these cases were
not litigated in potentially time-consuming and expensive cross-border civil procedures. Instead of decreasing or removing the litigation threshold, enforcement of
ODR through state courts would just shift the threshold from the access to court
perspective into the enforcement phase. In order to function similarly to foreign
arbitral awards, access to enforcement through state courts requires that the
thresholds of time and expense be lowered. However, making the court system
more efficient without lowering due process standards is no small feat.
Secondly, the typical e-commerce cases delve deeper into the sphere of domestic
legislation than does commercial arbitration, as consumer protection regulation
varies significantly between different jurisdictions. The national character of consumer protection and the need for upholding sufficient redress as a means to this
end mean that we cannot leave private ODR simply as it is without regulating due
process and enforcement, as ODR may easily be the only available redress
mechanism. Thirdly, the role and consequences of private enforcement mechanisms have not been discussed at all in this context. It is unclear whether and how
private cross-border enforcement could be regulated, but it is becoming increasingly obvious that the existing way of understanding enforcement and traditional
instruments does not provide the answer.
Hence, we arrive at another dead end. Attempts to create multilateral regulatory
instruments have been fruitless, as sovereign states have not found a compromise.
It is unclear how such instruments would come about, and to what extent they
would be implemented even if an acceptable compromise could be found. National
128 Three quests for justification