34 Elizabeth G Thornburg, ‘Going Private: Technology, Due Process, and Internet
Dispute Resolution’ (2000) 34 University of California Davis Law Review 151, 187.
35 ‘Oxford Dictionary: Enforcement’ http://www.oxforddictionaries.com/definition/
english/enforcement (accessed 19 June 2018).
36 Recommendation of the Committee of Ministers to Member States on enforcement
2003 I.a.
37 Aubert, ‘Competition and Dissensus: Two Types of Conflict and Conflict Resolution’
(n 23); Aubert, Rettens Sosiale Funksjon (Universitetsforlaget 1976) 180–186.
38 Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority’ (1990) 11
Cardozo Law Review 919, 925–927. Another example of from Derrida is the German
word ‘Gewalt’ which can be translated both as ‘violence’ and as ‘authorised power’.
39 Escrow services refer to online payment intermediaries that deposit a buyer’s payment
until the bought item is delivered and accepted. See e.g., Cortés (n 17) 60.
40 Similarly, Ponte highlights that there is a need for cross-border enforceability of ODR,
as cross-border enforcement in a national court is not an option and even if it was, it is
unlikely, that a national court would recognise an ODR decision that does not comply
with established legal standards. See, Lucille M Ponte, ‘Throwing Bad Money after
Bad: Can Online Dispute Resolution (ODR) Really Deliver the Goods for the
Unhappy Internet Shopper’ (2001) 3 Tulane Journal of Technology and Intellectual
Property 55, 88.
41 According to Article 5 of the Convention, recognition may be refused if it is shown
that the arbitration agreement was invalid, if a party was not given a proper notice of
the appointment of the arbitrator, the arbitrated matter is outside the scope of the
arbitration agreement, the composition of the arbitral tribunal was not in accordance
with the agreement or with the law of the country of arbitration proceedings,
the arbitral award is not yet inter partes binding, or if the subject matter cannot be
arbitrated according to the law of the country of enforcement, or if recognition would
be against public policy. The Convention is available at: http://www.newyorkconven
tion.org/texts/ (accessed 19 June 2018).
42 It should be noted that a chargeback process can also be independent of the ODR
decision. For example, PayPal may make a decision on behalf of the parties but this
does not prevent the parties from engaging in a chargeback dispute with the credit
card company. See Amy J Schmitz, ‘“Drive-Thru” Arbitration in the Digital Age:
Empowering Consumers Through Binding ODR’ 62 Baylor Law Review 178, 217.
43 Ichiro Kobayashi, ‘Private Contracting and Business Models of Electronic Commerce’
(2005) 13 University of Miami Business Law Review 161, 215.
44 On reputation systems see, Louis Del Duca, Colin Rule and Zbynek Loebl, ‘Facilitating Expansion of Cross-Border E-Commerce – Developing a Global Online Dispute
Resolution System (Lessons Derived from Existing ODR Systems – Work of the
United Nations Commission on International Trade Law)’ (2012) 1 Penn State
Journal of Law and International Affairs iv, 64.
45 Ponte (n 40) 88–89.
46 ‘List of Approved Dispute Resolution Service Providers’ https://www.icann.org/
resources/pages/providers-6d-2012-02-25-en?routing_type=path/ (accessed 19 June
2018).
47 ‘Uniform Domain Name Dispute Resolution Policy’ (26 August 1999) 4.k https://
www.icann.org/resources/pages/policy-2012-02-25-en?routing_type=path/(accessed
19 June 2018).
48 N Luhmann, Law as a Social System (Fatima Kastner and others eds, Klaus A Ziegert
tr, Oxford University Press 2004) 171.
49 However, in 2014 eBay announced plans to detach Paypal from eBay into an
independent company in 2015. See Deepa Seetharaman and Supantha Mukherjee,
‘EBay Follows Icahn’sAdvice, Plans PayPal Spinoff in 2015‘(30 September 2014)
Emerging crisis 83
Dispute Resolution’ (2000) 34 University of California Davis Law Review 151, 187.
35 ‘Oxford Dictionary: Enforcement’ http://www.oxforddictionaries.com/definition/
english/enforcement (accessed 19 June 2018).
36 Recommendation of the Committee of Ministers to Member States on enforcement
2003 I.a.
37 Aubert, ‘Competition and Dissensus: Two Types of Conflict and Conflict Resolution’
(n 23); Aubert, Rettens Sosiale Funksjon (Universitetsforlaget 1976) 180–186.
38 Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority’ (1990) 11
Cardozo Law Review 919, 925–927. Another example of from Derrida is the German
word ‘Gewalt’ which can be translated both as ‘violence’ and as ‘authorised power’.
39 Escrow services refer to online payment intermediaries that deposit a buyer’s payment
until the bought item is delivered and accepted. See e.g., Cortés (n 17) 60.
40 Similarly, Ponte highlights that there is a need for cross-border enforceability of ODR,
as cross-border enforcement in a national court is not an option and even if it was, it is
unlikely, that a national court would recognise an ODR decision that does not comply
with established legal standards. See, Lucille M Ponte, ‘Throwing Bad Money after
Bad: Can Online Dispute Resolution (ODR) Really Deliver the Goods for the
Unhappy Internet Shopper’ (2001) 3 Tulane Journal of Technology and Intellectual
Property 55, 88.
41 According to Article 5 of the Convention, recognition may be refused if it is shown
that the arbitration agreement was invalid, if a party was not given a proper notice of
the appointment of the arbitrator, the arbitrated matter is outside the scope of the
arbitration agreement, the composition of the arbitral tribunal was not in accordance
with the agreement or with the law of the country of arbitration proceedings,
the arbitral award is not yet inter partes binding, or if the subject matter cannot be
arbitrated according to the law of the country of enforcement, or if recognition would
be against public policy. The Convention is available at: http://www.newyorkconven
tion.org/texts/ (accessed 19 June 2018).
42 It should be noted that a chargeback process can also be independent of the ODR
decision. For example, PayPal may make a decision on behalf of the parties but this
does not prevent the parties from engaging in a chargeback dispute with the credit
card company. See Amy J Schmitz, ‘“Drive-Thru” Arbitration in the Digital Age:
Empowering Consumers Through Binding ODR’ 62 Baylor Law Review 178, 217.
43 Ichiro Kobayashi, ‘Private Contracting and Business Models of Electronic Commerce’
(2005) 13 University of Miami Business Law Review 161, 215.
44 On reputation systems see, Louis Del Duca, Colin Rule and Zbynek Loebl, ‘Facilitating Expansion of Cross-Border E-Commerce – Developing a Global Online Dispute
Resolution System (Lessons Derived from Existing ODR Systems – Work of the
United Nations Commission on International Trade Law)’ (2012) 1 Penn State
Journal of Law and International Affairs iv, 64.
45 Ponte (n 40) 88–89.
46 ‘List of Approved Dispute Resolution Service Providers’ https://www.icann.org/
resources/pages/providers-6d-2012-02-25-en?routing_type=path/ (accessed 19 June
2018).
47 ‘Uniform Domain Name Dispute Resolution Policy’ (26 August 1999) 4.k https://
www.icann.org/resources/pages/policy-2012-02-25-en?routing_type=path/(accessed
19 June 2018).
48 N Luhmann, Law as a Social System (Fatima Kastner and others eds, Klaus A Ziegert
tr, Oxford University Press 2004) 171.
49 However, in 2014 eBay announced plans to detach Paypal from eBay into an
independent company in 2015. See Deepa Seetharaman and Supantha Mukherjee,
‘EBay Follows Icahn’sAdvice, Plans PayPal Spinoff in 2015‘(30 September 2014)
Emerging crisis 83