CONCLUSION
Traditional arbitration is a process where a third party chosen by the parties, or nominated by the institution chosen by the parties, renders a decision on a case while applying fundamental procedural principles. Traditionally – in the offline world – arbitration resolves a dispute by making an enforceable decision[1]. This is the binding form of arbitration – a process whose decisions, by law operation, are enforceable by the authorities of the state. The ideology of traditional binding arbitration is that it constitutes a form of private judging, a substitute for court litigation[2].
Additionally, there also is a non-binding form of arbitration. In this context, this means that the decision is not enforceable by state authorities on its own. A decision like that may become binding afterwards, when made part of a consent award or a settlement agreement. The ideology of non-binding arbitration is that it constitutes negotiation assistance – a form of mock trial[3].
Alternative dispute resolution has come in the fore in the last few years, due to the extensive use of the internet. The characteristics of the Cyberspace have made insufficient the traditional dispute resolution through judicial procedures and administrative-agency because of the controversies that come up in political interaction and commerce that are internet-based.
To begin with, the internet is naturally worldwide, as selling goods on a Web page on a server actually to be found in Paris is able to be seen to customers in Singapore as in Paris. Therefore, in Cyberspace-based markets and political arenas it is easier said than done to restrict the damage itself or the damage-generating operations. To agree on jurisdiction, the traditional dispute resolution system depends on localisation, while hesitation and debates over jurisdictional claims are generated by obstacles to localisation. This subjects all the internet users to jurisdiction by any one of the officially recognised states in the world. It also results to the possible annoyance of communities who dislike being unable to reach a conduct that takes place in a distant country, through their legal system.
Moreover, individuals and small entities that do not have the funds to participate directly in traditional markets and political arenas are encouraged to participate in politics and commerce by internet’s low financial barriers of entrance. This also indicates a better frequency of small transactions. The value of the original transaction is threatened to be swamped by the costs of the dispute resolution, if – and this is the case for the traditional arbitration procedures – these are high. On the one hand, this discourages the victims from seeking justification of their rights and, on the other hand, it brings the suspected offenders to the position to face court case expenses that may overcome the profit that they make offering electronically their goods and services. The reduction of dispute resolution costs is a necessity, in order for individuals and small entities to participate.
All these challenges are successfully confronted by alternative dispute resolution, including a wider choice of alternatives (such as escrow arrangements for example), and not only arbitration and mediation. The first way is that alternative dispute resolution can be planned to be significantly less expensive than traditional operations. Also, when the participants that agree in the alternative dispute resolution procedure are in different states, then the ADR is naturally international.
Alternative dispute resolution methods that are properly designed solve the issue of jurisdiction, put forward lower costs, and restore participants’ confidence, for the reason that their use demonstrates approval. A willingly offered fund is engaged by several types of alternative dispute resolution – generally the disputed transaction’s fee – as a way to satisfy a result for both disputants. The ease of use of a fund is frequently taken too lightly as a decisive factor. This factor may explain why intermediary provided dispute resolution methods – like e.g. escrow arrangements – turn out to be more attracting in reality than self-regulating third party systems. Additionally, to an arbitration process, the winning party must be still worried for the implementation of an arbitration award against the party that has lost.
The argument that individuals or organizations involved in Cyberspace disputes readily accept new types of dispute resolution is not supported empirically. To a certain extent, the rising utilization of alternative dispute resolution is more or less at all times associated with its explicit association to one of the disputing parties, as by the takeover of ADR procedures to recognized court systems as for example in the case of court annexed arbitration[4].
Concluding that technological limitations hold back the exercise and development of online alternative dispute resolution would be too simplistic, as even uncomplicated disputes that do not require extensive fact investigation or oral testimonies, have not reached online alternative dispute resolution systems. The dispute resolution society must work harder towards the recommendation and the connection of the various approaches in order to build up an improved body of knowledge and practice with uncomplicated applications, before the investment of more funds for the development of more complex technological applications for online dispute resolution. When this body of knowledge and practise becomes a reality, it will be likely to make more sound judgements about the necessary technological developments.
(Note: This conclusion does not include a summary of the whole dissertation, as this is not completed. Upon completion of the dissertation a brief synopsis and concluding arguments will be added)
Bibliography
· Redfern, A. and Hunter, M (1999), Law and Practice of International Commercial Arbitration, London, Sweet & Maxwell.
· Van Den Berg, A. J. (1981), The New York Arbitration Convention of 1958: towards a uniform judicial interpretation, Deventer, Boston, Kluwer Law and Taxation.
· Rau, A. S. “Contracting Out of the Arbitration Act”, 8 American Revue of International Arbitration, 225 (1997).
· Perritt, H. H. ‘Dispute Resolution in Cyberspace: Demand for new forms of ADR’, in: http://www.disputes.net.cyberweek2000/ohiostate/perritt1.htm
[1] Redfern, A. and Hunter, M (1999), Law and Practice of International Commercial Arbitration, London, Sweet & Maxwell, p. 3-4.
[2] Van Den Berg, A. J. (1981), The New York Arbitration Convention of 1958: towards a uniform judicial interpretation, Deventer, Boston, Kluwer Law and Taxation, p. 44.
[3] Rau, A. S. “Contracting Out of the Arbitration Act”, 8 American Revue of International Arbitration, 225 (1997), p. 242.
[4] Perritt, H. H. ‘Dispute Resolution in Cyberspace: Demand for new forms of ADR’, in: http://www.disputes.net.cyberweek2000/ohiostate/perritt1.htm p. 17.
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