Adjudicative Online dispute resolution

1 adjudicative

1.1 online arbitration
1.2 uniform domain names dispute resolution policy (udrp)
1.3 chargebacks

adjudicative
online arbitration

arbitration process neutral third party (arbitrator) delivers decision final, , binding on both parties. can defined quasi-judicial procedure because award replaces judicial decision. arbitrators can current or former trial judges, not requirement. however, in arbitration procedure parties can choose arbitrator , basis on arbitrator makes decision. furthermore, less formal litigation, though more other consensual process. used resolve businesses disputes because procedure noted being private , faster litigation. once procedure initiated parties cannot abandon it, unless both agree discontinuing (e.g. when reached settlement - although settlement communicated arbitral tribunal , award rendered on basis). feature of arbitration award enforceable everywhere due wide adoption of 1958 new york convention on recognition , enforcement of foreign arbitral awards. moreover, arbitral awards prove easier enforce court decisions overseas.

the majority of legal studies on online arbitration agree that, neither law, nor arbitral principles, prevent arbitration taking place online. however, there may several aspects in online arbitration need regulated. although online arbitration seems admissible under new york convention , e-commerce directive, arguably assumption commentators, rather legal statement. since arbitration based on contractual agreement between parties, online process without regulatory framework may generate significant number of challenges consumers , other weaker parties if due process cannot assured. currently, arbitration providers allow parties carry out online part of arbitration process, e.g. parties may download claim forms, submission of documents through standard email or secure web interface, use of telephone hearings, etc. other providers conduct proceedings exclusively online, either email or on dedicated web platform. key element of arbitration right party question witnesses of other parties , can done @ low cost online audio , video hearing process using newer technologies such skype premium or google hangouts. cross examination of remote witnesses regulated arbitrator can ensure fairness , maintain judicial quality online arbitration process.

the main challenge online arbitration if judicial enforcement required partly defeats purpose of having online process. alternatively, processes have developed self-enforcement mechanisms such technical enforcements, black lists , trustmarks.

the uniform domain names dispute resolution policy (udrp)

traditionally arbitration resolves disputes delivering decision legally binding, i.e. enforceable courts in same manner judgment. non binding arbitration processes may effective when using odr tools because encourage settlements imparting dose of reality , objectivity. in addition, self-enforcement measures may reinforce efficacy of non binding processes. significant example uniform domain name dispute resolution policy (udrp) created internet corporation assigned names , numbers (icann). commentators have referred udrp administrative process. in case, udrp has developed transparent global odr process allows trade mark owners fight efficiently cybersquatting. udrp used resolve disputes between trade mark owners , have registered domain name in bad faith purpose of reselling profit, or taking advantage of reputation of trademark.

trademark owners accessing udrp must prove panel 3 circumstances:

however, udrp presents own problems show challenges online adversarial system applied mainstream e-commerce disputes have. main worry evaluation of panel decisions shows lack of unanimous consensus in interpretation of udrp. may due number of reasons, such lack of appellative review , panels composed members multitude of jurisdictions , informed different legal traditions.

on other side, undeniable icann udrp has achieved in developing effective odr procedure based on contractual adherence allows trade mark owners transfer or cancel domain blatantly violates ip rights. udrp providers have dealt efficiently on 30,000 domain name disputes. success derives 2 aspects: first, udrp deals blatant disputes, abusive registrations made in bad faith in order take advantage of reputation of existing trademarks. secondly, has incorporated self-enforcement mechanism, transfers , cancels domain names without need judicial involvement. positive accomplishment development of e-commerce because favours consumers confidence in internet reducing number of fraudulent registered domain names.

chargebacks

one of main focuses of e-commerce until has been related secure payments. chargebacks remedy used reverse transactions made credit or debit cards when fraudulent use has occurred, or when there violation of contract terms. method popular among online consumers since main mechanism transfer money online. in addition, consumers not required give evidence cancel payment. vendor has burden of proving merchandise or service given according contract terms. once proved bank makes effective payment vendor.

chargebacks largely used around world banks , main credit card suppliers i.e. visa, mastercard , american express. yet, coverage of debit , credit cards varies considerably amongst different countries. commonly, debit cardholders have fewer protections credit card holders, varies depending on jurisdiction.

it not surprising why credit cards major source of payments consumers in e-commerce. provide remedy reverses transactions when fraudulent use has occurred, or when there violation of contract terms. method has limitations; offers 1 single remedy (the return of payment), , not disputes imply breach of contract or fraud.

similarly, online payment providers, paypal.com, retain temporarily money paid buyer when latter makes complaint within 45 days after payment made. paypal.com holds money until dispute settled, in cases merchandise did not arrive, or description of product different product itself. in these circumstances paypal.com acts akin online arbitrator. however, in circumstances seller takes away money account before buyer makes claim, paypal.com not responsible buyer s loss. despite this, paypal in strong position since in cases able freeze amount of money , resolve dispute providing instant , effective enforcement.

overall, chargebacks intends balance inequality of power between consumers , businesses. regarded efficient tool consumers because speed, accessibility , lack of charge clients, have notify banks or card issuers cancel transaction. thus, edwards , wilson suggested advisable focus on developing chargebacks , other soft odr methods because effective amongst mainstream consumers. contrast, existing processes considered largely inefficient , not transparent among businesses because puts businesses in bad light since onus of proof rests on them.