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BUILDING A GLOBAL REDRESS SYSTEM FOR LOW-VALUE CROSS-BORDER DISPUTES

Published online by Cambridge University Press:  09 April 2013

Pablo Cortés  and
Fernando Esteban de la Rosa
Pablo Cortés
Affiliation:
Senior Lecturer in Law, University of Leicester and 2012 Gould Research Fellow at Stanford University, pablo.cortes@leicester.ac.uk
Fernando Esteban de la Rosa
Affiliation:
Professor in Law, Universidad de Granada, festeban@ugr.es.
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Abstract

This article examines UNCITRAL's draft Rules for Online Dispute Resolution (ODR) and argues that in low-value e-commerce cross-border transactions, the most effective consumer protection policy cannot be based on national laws and domestic courts, but on effective and monitored ODR processes with swift out-of-court enforceable decisions. The draft Rules propose a tiered procedure that culminates in arbitration. Yet, this procedure neither ensures out-of-court enforcement, nor does it guarantee compliance with EU consumer mandatory law. Accordingly, this article argues that the draft Rules may be inconsistent with the European approach to consumer protection.

Keywords

Alternative Dispute Resolutionarbitrationconsumer redressOnline Dispute ResolutionUNCITRAL
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 2 , April 2013 , pp. 407 - 440
Copyright
Copyright © British Institute of International and Comparative Law 2013

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References

1 Schultz, T, ‘Private Legal Systems: What Cyberspace Might Teach Legal Theorists’ (2007) 10 Yale Journal of Law & Technology 159Google Scholar. cf Bordone, R, ‘Electronic Online Dispute Resolution: A Systems Approach—Potential, Problems, and a Proposal’ (1998) 3 Harvard Negotiation Law Review 175Google Scholar.

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5 Report of UNCITRAL Working Group III (Online Dispute Resolution) on the work of its twenty-second session (Vienna, 13–17 December 2010) A/CN9/716, para 16. cf C Hodges, I Benöhr and N Creutzfeldt-Banda, Consumer ADR in Europe (Civil Justice Systems) (Beck/Hart 2012).

6 See UNCITRAL Report on the work of its twenty-third session (New York, 21 June–9 July 2010).

7 UNCITRAL Working Group III (Online Dispute Resolution) twenty-sixth session (Vienna, 5–9 November 2012). A/CN.9/WG.III/WP.117. The work which has taken place in the various different sessions may be found at <http://www.uncitral.org/uncitral/en/commission/working_groups/3Online_Dispute_Resolution.html>. (Hereinafter all websites were accessed 06/03/2013).

8 Art 2 of the draft procedural Rules of the twenty-third session (New York, 23–27 May 2011) A/CN.9/WG.III/WP.109.

9 Proposal for a Directive on alternative dispute resolution for consumer disputes (Directive on Consumer ADR) COM(2011) 793 final.

10 ibid art 6–9. It should be noted that the European Parliament and the European Council have both proposed the inclusion of the principle of legality. See Draft Report of the Committee on the Internal Market and Consumer Protection on the proposal for a directive of the European Parliament and of the Council on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on Consumer ADR) (COM(2012)0793 – C7 0454/2011– 2011/0373(COD)) Rapporteur Louis Grech (18 April 2012), and the Council of the European Union, General Approach to the proposal for a Directive on Consumer ADR 2011/0373 (COD) (24 May 2012).

11 Proposal for a Regulation on online dispute resolution for consumer disputes (Regulation on Consumer ODR) COM(2011) 794 final.

12 The documents can be found at: <http://ec.europa.eu/consumers/redress_cons/adr_policy_work_en.htm>.

13 See eg Rule, C, Online Dispute Resolution for Businesses: B2B, E-Commerce, Consumer, Employment, Insurance, and Other Commercial Conflicts (Jossey Bass 2002)Google Scholar. cf Cortés, P book review of J Hörnle, Cross-Border Internet Dispute Resolution (CUP 2009)Google Scholar (2010) 73 MLR 171; de la Rosa, F Esteban, ‘Principios De Protección Del Consumidor Para Una Iniciativa Europea En El Ámbito De La Resolución Electrónica De Diferencias (ODR) De Consumo Transfronterizas' (2011) 25 Revista General de Derecho Europeo 1Google Scholar.

14 Hörnle, J, Cross-Border Internet Dispute Resolution (CUP 2009)CrossRefGoogle Scholar.

15 Schultz, T, ‘Internet Disputes, Fairness in Arbitration and Transnationalism: A Reply to Julia Hörnle’ (2011) 19 International Journal of Law and Information Technology 156–7CrossRefGoogle Scholar.

16 This article mainly considers the results of the twenty-fifth session of UNCITRAL Work Group III (21–25 May 2012, New York) Online Dispute Resolution for Cross-border Electronic Commerce Transactions: Draft Procedural Rules. Hereinafter Draft Rules. A/CN.9/WG.III/WP.112. Available at <http://www.uncitral.org/uncitral/en/commission/working_groups/3Online_Dispute_Resolution.html>.

17 Draft Preamble. Although UNCITRAL has a mandate to develop procedural rules to assist in the resolution of cross-border electronic transactions, not domestic ones, there is no reason why national legislators cannot use these Rules, particularly if they are finally adopted as a Model Law, since in practice it may be difficult for sellers to know whether they are entering into a contract with foreign or local buyers.

18 The need to determine the meaning of ‘consumer’ in the context of EU law has resulted in many ECJ judgments. See de la Rosa, F Esteban, La Protección de los Consumidores en el Mercado Interior Europeo, (Comares 2003) 44–70Google Scholar; Micklitz, H and Reich, N, ‘Crónica de una Muerte Anunciada: The Commission Proposal for a Directive on Consumer Rights’ (2009) 46 CMLRev 471Google Scholar.

19 This restriction is pending the approval by the European Commission, the Parliament and Council during the first quarter of 2013. See also P Cortés, ‘Improving the EU's Proposals for Extra-judicial Consumer Redress’ (10 May 2012) Computers and Law available at <http://www.scl.org/site.aspx?i=ed26381>. cf European Parliament Internal Market and Consumer Protection (IMCO) Committee Draft Report by Rapporteur R Thun (April 2012). The Draft Report proposes that traders should be able to bring complaints against consumers but only when the consumers have voluntarily opted into the process. Available at <http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&reference=PE487.752> 42.

20 See eg art 41 Spanish Royal Decree 231/200 that regulates the consumer arbitration system. cf. Vilalta, A. E. ‘Contratación Transnacional y Acceso a la Justicia: Mecanismos de Resolución Electrónica de Disputas’ (2012) 732 Revista Crítica de Derecho Inmobiliario 2067–2149Google Scholar.

21 UNCITRAL noted that ‘[i]n a global cross-border environment for low-value high-volume cases, it may be necessary to limit the types of cases to simple fact-based claims and basic remedies. Otherwise there is a substantial risk of flooding the system with complex cases, making it inefficient and expensive’. See UNCITRAL WG III in its twenty-third session (23–27 May 2011, New York) A/CN.9/WG.III/WP.107 para 34.

22 Girsberger, D and Schramm, D, ‘Cyber-Arbitration’ (2002) 3 European Business Organization Law Review 626CrossRefGoogle Scholar.

23 This limitation on its scope has also been inserted in art 1(2) of Electronic Consumer Dispute Resolution (ECODIR) Rules and in art 2 of Online Dispute Resolution Proposal – United States Submission at the Organisation of American States 2010. cf Del Duca, L, Rule, C and Rogers, V, ‘Designing a Global Consumer Online Dispute Resolution (ODR) System for Cross-Border Small Value—High Volume Claims—OAS Developments’ (2010) 42 Uniform Commercial Code Law Journal 221Google Scholar.

24 Draft Rules art 2 states that ‘“ODR platform” means one or more than one online dispute resolution platform which is a system for generating, sending, receiving, storing, exchanging or otherwise processing electronic communications used in ODR’.

25 This approach was taken first by SquareTrade and later by eBay and PayPal in order to promote settlement between the disputants. See Abernethy, S, ‘Building Large-Scale Online Dispute Resolution and Trustmark Systems’ in Katsh, E and Choi, D (eds), Online Dispute Resolution: Technology as the ‘Fourth Party (Kluwer 2003)Google Scholar. cf Rabinovich-Einy, O, ‘Technology's Impact: The Quest for a New Paradigm for Accountability in Mediation’ (2006) 11 Harvard Negotiation Law Review 253Google Scholar.

26 These requirements are similar to those established for the consumer/trader disputes by art 9 of the proposal for a Directive on consumer ADR.

27 Draft Rules art 5(3) and 5(4).

28 Research carried out by the online payment system PayPal found that parties often prefer an expeditious ODR process than a lengthier and more accurate process. Lodder, A and Zeleznikow, J, Enhanced Dispute Resolution Through the Use of Information Technology (CUP 2010) 21CrossRefGoogle Scholar.

29 See eg Mnookin, R and Kornhauser, L, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 YaleLJ 950Google Scholar and Cooter, R et al. , ‘Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior’ (1982) 11 Legal Studies 225CrossRefGoogle Scholar.

30 We thank the reviewers for raising this point.

31 cf art. 9(2)(c) of the draft ADR Directive which deals with the principle of fairness and requires that parties in ADR processes ‘before expressing their consent to a suggested solution or amicable agreement, are allowed a reasonable period of time to reflect’. See also the European Commission Recommendation of 4 April 2001 on the Principles for Out-of-Court Bodies Involved in the Consensual Resolution of Consumer Disputes, Principle D Fairness: ‘The fairness of the procedure should be guaranteed. In particular: (d) prior to the parties agreeing to a suggested solution for resolving the dispute, they should be allowed a reasonable period of time to consider this solution.’

32 The current time limit is 10 calendar days but this is expected to be revised once the draft Rules are more developed. See Draft Rules art 5.2.

33 The Guidelines for ODR providers should explain the mechanism by which the provider can ascertain whether a respondent has received the notice. In practice this may not be a difficult task since the respondent should provide an electronic address for the purpose of all communications when accepting the Rules on the ODR platform.

34 At the 22nd session of the Working Group, there was general agreement that, in the absence of agreement by the parties, there should be a sole neutral (n 5) para 62.

35 Draft Rules art 7.

36 See A/CN.9/WG.III/WP.112/Add.1, paras 20–25.

37 ibid.

38 See Draft Rules art 5 of the proposal for an ODR Regulation.

39 It should be noted that instant translation is already offered by several sites free of cost, eg <http://translate.google.com/#>.

40 See (n 5) para 63. See also art 6 Proposal for a Directive on consumer ADR.

41 Draft Rules art 12 of UNCITRAL Model Law on International Commercial Conciliation (2002) states that ‘unless otherwise agreed by the parties the conciliator should not be [the arbitrator]’. This article follows the reasoning that the two processes are different, so they must be triggered by different needs and create different results. Despite the article clearly stating that the parties’ intent should prevail, such intent must be clearly expressed by the parties. It must be noted that a number of UNCITRAL Working Group delegations have expressed a preference for having a different neutral for the conciliation and the arbitration given that they have different roles and training.

42 The Model Law allows this only if the parties’ agree (art 12). The Model Law is accessible at <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2002Model_conciliation.html>.

43 See, for instance, the Spanish consumer arbitration system, art 22.1 Royal Decree 231/2008. There is also traditionally a preference for separate ethics codes for mediators and arbitrators. See Menkel-Meadow, C, ‘Are There Systematic Ethic Issues in Dispute System Design? And What We Should [Not] Do About It: Lessons from International and Domestic Fronts’ (Winter 2009) 14 Harvard Negotiation Law Review 202Google Scholar.

44 Draft Rules art 8.1.

45 Draft Rules art 6.

46 Draft Rules art 6.3.

47 UNCITRAL Arbitration Rules art 6.7 (as revised December 2010).

48 This Rule is in the rules for ODR providers funded by the European Commission: ECODIR. See <http://www.ecodir.org/>.

49 Anonymous authors, ‘Mandatory Mediation and Summary Jury Trial: Guidelines for Ensuring Fair and Effective Processes’ (1990) 103 HarvLRev 1086Google Scholar.

50 Draft Rules art 9.2.

51 Draft Rules art 9.1.

52 Draft Rules art 9.4.

53 See eg Schmitz, A, ‘Legislating in the Light: Considering Empirical Data in Crafting Arbitration Reforms’ (2010) 15 Harvard Negotiation Law Review 194Google Scholar and ‘“Drive-Thru” Arbitration in the Digital Age: Empowering Consumers through Regulated ODR’ (2010) 62 Baylor Law Review 178–244Google Scholar.

54 Class actions are one of the key differences between US and EU civil justice cultures. While in the US a class action is a real threat to large traders, this is not so in the EU where collective actions are not common. It should be noted that the US Supreme Court has recently given the green light in AT&T Mobility v Concepcion 131 S. Ct. 1740 (2011) to US businesses that wish to minimize the threat of class actions by using cost-effective and fair consumer arbitration programs. Conversely, the same motivation does not exist in the EU, where there is no opt-in system for collective actions, where they do not normally allow contingency fee agreements, and they are not heard by civil juries which can award punitive damages. Although the EU is developing a legislative instrument on collective redress, it is unlikely to become as widespread as in the US for the reasons given. See generally Hodges, C, Peysner, J and Nurse, A ‘Litigation Funding. Status and Issues’ (Oxford Centre for Socio-Legal Studies 2012)CrossRefGoogle Scholar available at: <http://www.csls.ox.ac.uk/documents/ReportonLitigationFunding.pdf>; and European Parliament Resolution of 2 February 2012, ‘Towards a Coherent European Approach to Collective Redress’ (2011/2089(INI)). The restrictive application of collective redress in the EU is balanced with the ADR and ODR proposals, and its amendments, which restrict the use of pre-dispute consumer arbitration and processes that cannot guarantee compliance with consumer rights. See MEP Grech Draft Report (n 10) 21, para 21(b) and European Council General Approach to the Proposals (n 10) 13 para 21(a).

55 The e-Justice portal is presently preparing an online filing system for the European Small Claims Procedure, which is expected to start running in 2013. See <https://://e-justice.europa.eu/home.do?plang-en&action=home>. cf Cortés, P. ‘Does the Proposed European Procedure Enhance the Resolution of Small Claims?’ (2008) 27 CJQ 83–97Google Scholar.

56 See eg the Spanish consumer arbitration system, where the possibility of equity-based solutions allows the arbitrators to change the onus probandi of the parties.

57 J Hörnle, ‘Encouraging Online Dispute Resolution in the EU and Beyond: Keeping Costs Low or Standards High?’ Queen Mary School of Law Legal Studies Research Paper No. 122/2012, section 7.

58 Balboni, P, Trustmarks in E-Commerce (CUP 2009)CrossRefGoogle Scholar.

59 A trustmark is an electronic label displayed in the traders’ website by which they pledge to comply with a code of conduct, the relevant law, and that disputes will be addressed by an independent neutral third party. Balboni, ibid, 35–7.

60 C Rule, CEO at MODRIA (and former ODR Director for eBay and PayPal), Presentation on eBay ODR Experience at the 10th International ODR Forum, Chennai, India, 9 February 2011.

61 Sorkin, DE, ‘Payment Methods for Consumer-to-Consumer Online Transactions’ (2001) 35 Akron Law Review 1, 9–10Google Scholar.

62 This incentive would go hand in hand with the art 5.1 of the Mediation Directive that allows national courts to recommend the use of mediation. Established UK case law states that cost penalties for unreasonably refusing to participate in ADR complies with art 6 ECHR and art 47 of the CFREU. See Halsey v Milton EWCA Civ 576 (2005), and Part 36 of the Civil Procedure Rules 1998 (England and Wales).

63 See European Parliament Resolution (n 54).

64 Hörnle (n 57) 4a.

65 ibid.

66 Rule (n 13).

67 For instance, CEDR Solve through the Association for British Travel Agents (ABTA) offers an arbitration scheme that incorporates economic incentives. Its rules state that if the consumer complainant is awarded less than what was previously offered by the trader, the consumer will be ordered to pay an amount which is equal to the registration fee. See <http://www.abta.com/consumer-services/travel_problems/arbitration>. cf Cortés, P, ‘A Comparative Review of Offers to Settle: Would an Emerging Settlement Culture Pave the Way for Their Adoption in Continental Europe?’ (2013) 32(1) CJQ 42–67Google Scholar.

68 See eg the proposal made by the USA at the OAS meeting in 2010. See generally Del Duca et al (n 23) 221.

69 <http://isisa.ccreditation.imrg.org/User/Pages/WithdrawnWebsites.aspx?pageID=16&pageTemplate=1>.

70 <http://www.ombudsmann.at/schlichtung.php/cat/5/aid/17/title/Watchlist>.

71 European Parliament Study Cross-border Alternative Dispute Resolution in the EU (2011) 40

72 <http://www.bbb.org/>.

73 <http://www.google.com/ads/shopping/> and <http://www.google.com/wallet/>.

74 Reports on the main features of the ADR systems in Europe, country by country, are available in C Hodges et al (n 5).

75 V Rogers, Institute of International Commercial Law (Pace Law School) Note on the Resolution Process Designated by the Draft ODR Rules Vienna, 14–18 November 2011.

76 Fuller, L, ‘The Forms and Limits of Adjudication’ (1978) 92 HarvLRev 353Google Scholar; Fuller, L, ‘Mediation: Its Forms and Functions’ (1971) 44 CalLRev 305Google Scholar; Winston, K, ‘Introduction to the Revised Edition’ in Winston, K (ed), The Principles of Social Order: Selected Essays of Lon L. Fuller (Hart 2001)Google Scholar.

77 Menkel-Meadow (n 43) 195, 201.

78 Hörnle (n 57).

79 The two main different types of procedures were considered by the European Commission when adopting Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes, (OJ L 115, 17 April 1998), and in Commission Recommendation 2001/310/EC of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes, OJ L 109/56, 19 April 2001. See Hörnle (n 57).

80 ibid.

81 The Directive is also set to include the principle of legality, providing that in adjudicative processes consumers cannot be offered a lower level of protection than the mandatory law. cf de la Rosa, Esteban, ‘Régimen Europeo de la Resolución Electrónica de Litigios (ODR) en la Contratación Internacional de Consumo’ in de la Rosa, F. Esteban and Orozco Pardo, G., Mediación y Arbitraje de Consumo, una Perspectiva Española, Europea y Comparada (Tirant lo Blanch 2010) 165–222Google Scholar, especially 195–7. See MEP Grech Draft Report (n 10) 21, para 21(b), and European Council General Approach to the Proposals (n 10) 13 para 21(a). A uniform approach in the EU would also facilitate the negotiation of international treaties, such as the on-going negotiations in the frame of the UNCITRAL and the Hague Convention on Conflict of Laws.

82 ibid.

83 For instance the EU ODR Platform is scheduled to be fully operational in 2015.

84 Art 15 of the Proposal for a Directive on Consumer ADR.

85 DG JUSTICE Workshop on Alternative Dispute Resolution held in Brussels 28 February 2012.

86 See the US Supreme Court cases which have rejected challenges to pre-dispute arbitration clauses in consumer contracts, eg Buckeye Check Cashing, Inc. v Cardegna 546 US 440 (2006). Pre-dispute arbitration has nonetheless certain restrictions. In a recent decision the Second Circuit Court held that the credit card industry had breached anti-trust laws by conspiring to limit consumers’ dispute resolution choices through pre-dispute mandatory arbitration clauses. See Ross v Bank of America F.3d. 2008 WL 1836640 (Cir.2d. N.Y.). See eg Motor Vehicle Franchise Contract Arbitration Fairness Act, 15 U.S.C. para 1226(a)(2) (2002). It must be noted that there is increasing pressure in the US Congress to pass a Federal Law restricting the use of pre-dispute arbitration clauses in consumer and employment contracts. See more generally the Bill on the Arbitration Fairness Act of 2011 (section 987). cf Smith, S and Martinez, J, ‘An Analytic Framework for Dispute System Design’ (2009) 14 Harvard Negotiation Law Review 1417Google Scholar (on the challenges for a designing a dispute resolution process where there is an imbalance of power between the parties).

87 For the EU law see generally Recommendation 98/257/CE of the Commission on the Principles Applicable to the Bodies Responsible for Out-of-Court Settlement of Consumer Disputes 1998 OJ (L 115), VI Principle of Liberty. See also Annex I Unfair Terms in Consumer Contracts Directive 1993/13/EC. See also Annex 3 of the Arbitration Act No 138 of 2003 prohibiting consumer pre-dispute arbitration.

88 See 1998 Recommendation, Annex I of the Unfair Terms Directive 93/13/EC and art 84(d) of the Proposed Regulation on Common European Sales Law. This aspect has been clearly indicated by the European Court of Justice in Asturcom Telecomunicaciones and Mostaza Claro. The clause must be considered as unfair. See C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL. [2006] ECR I-10421. The forthcoming Consumer ADR Directive is set also to include the principle of liberty whereby clear consent from consumers will be required when they accept to participate in a binding adjudicative process. For the situation in Mexico and other Latin American jurisdictions see Arley, A ‘Análisis Tridimensional de la Resolución Electrónica de Disputas para el Comercio Electrónico en México (Online Dispute Resolution)’ (2012) 1 Revue Droit International, Commerce, Innovations & Développement 101Google Scholar ff.

89 A/CN.9/WG.III/XXIII/CPR.1/Add.1 para 21.

90 Adams, J and Brownsword, R, Understanding Contract Law (Thomson 2007) 188Google Scholar ff.

91 See generally A Schmitz (n 53); Hamilton, JW, ‘Pre-Dispute Consumer Arbitration Clauses: Denying Access to Justice?’ (2006) 51 McGillLJ 693Google Scholar; Matthews, JM, ‘Consumer Arbitration: Is it Working Now and Will It Work in the Future?’ (2005) 79 The Florida Bar Journal 1Google Scholar; Sternlight, J and Jensen, E, ‘Using Economic Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?’ (2004) 67 Law and Contemporary Problems 75Google Scholar; Sternlight, J, ‘Is Alternative Dispute Resolution Consistent with the Rule of Law’ (2006) 56 DePaul Law Review 569Google Scholar; Sternlight, J, ‘In Defense of Mandatory Arbitration (If Imposed on the Company)’ (2007) 8 Nevada Law Journal 82Google Scholar; Stewart, K and Matthews, J, ‘Online Arbitration of Cross-Border, Business to Consumer Disputes’ (2002) 56 UMiamiLRev 1119Google Scholar; Stipanowich, T, ‘The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution’ (2007) 8 Nevada Law Journal 427Google Scholar.

92 See the Arbitration Act 1996 and delegated legislation in the UK.

93 Art 2061 of the French Civil Code only allows arbitration clauses in contracts concerning professional activities, ie, not in consumers’ contracts; but this article does not apply to international arbitration. A case on the legality of an international arbitration clause was discussed by the French courts in the Jaguar case [Sté V 2000 and Sté XJ 220 Ltd c M Meglio and M Renault Rev. Arb. (1997) 537 and Cass Civ Ire (21 May 1997)] where the first instance court held the clause to be illegal, but the Court of Appeal reversed that decision and the Supreme Court confirmed that the dispute, in the circumstances, (it was a transaction of high value and the consumer was not in a weaker position) was subject to arbitration.

94 These clauses would require vendors to take reasonable steps to ensure buyers are sufficiently well informed of the dispute resolution process at the time of entering into transactions. Compliance with the rules provides an additional safeguard since they are designed to ensure a minimum of procedural guarantees when resolving disputes. Furthermore, the accreditation bodies would ensure that ODR providers comply with the rules contained in the model law. See Horn, N, ‘Arbitraje de Consumo en el Derecho Alemán y Europeo’, in de la Rosa, F Esteban and Orozco Pardo, G, Mediación y Arbitraje de Consumo, una Perspectiva Española, Europea y Comparada (Tirant lo Blanch 2010) 221–33Google Scholar.

95 Recommendation 98/257/EC.

96 See art 24 Royal Decree 231/2008 and art 90.1 Royal Decree Law 1/2007.

97 Art 41 Royal Decree 231/2008. These commentaries take into consideration the situation of the consumer as claimant. Spanish law does not allow the agreement to be used against the consumer, with the exception of the counterclaim.

98 See MEP Grech Draft Report (n 10) 21, para 21(b), and European Council General Approach to the Proposals (n 10) 13 para 21(a). A uniform approach in the EU would also facilitate the negotiation of international treaties, such as the ongoing negotiations in the frame of the UNCITRAL and the Hague Convention on Conflict of Laws.

99 Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial SA v. Murciano Quintero.

100 Kaufmann-Kohler, G and Schultz, T, Online Dispute Resolution: Challenges for Contemporary Justice (Kluwer Law International 2004) 204Google Scholar.

101 Joined Cases Rosalba Alassini and Others v Telecom Italia C-317/08.

102 Cortés, P, ‘Developing Online Dispute Resolution for Consumers in the EU: A Proposal for the Regulation of Accredited Providers’ (2011) 19 International Journal of Law and Information Technology 1–28CrossRefGoogle Scholar.

103 Rabinovich (n 25) 253.

104 See eg the proposal made by the USA at the OAS meeting in 2010. See generally Del Duca et al (n 23) 221.

105 See database at <http://ec.europa.eu/consumers/redress/out_of_court/adrdb_en.htm>.

106 See the Commission Recommendations on Consumer ADR 98/257/CE and 2001/310/CE.

107 Cortés, P, Online Dispute Resolution for Consumers in the European Union (Routledge 2010)CrossRefGoogle Scholar ch. 5.

108 Conley Tyler, M, and Bornstein, J, ‘Accreditation of On-line Dispute Resolution Practitioners’ (2006) 23 Conflict Resolution Quarterly 383CrossRefGoogle Scholar.

109 See art. 15 of the proposal for a Directive on Consumer ADR.

110 See <http://www.americanbar.org/groups/dispute_resolution/policy_standards.html>.

111 The National Alternative Dispute Resolution Advisory Council (NADRAC) in the Australian Department of Justice commissioned a study on the accreditation of ODR in 2002. See M Conley Tyler, ‘115 and Counting: The State of ODR 2004’ in M Conley Tyler, E Katsh and D Choi (eds), Proceedings of the Third Annual Forum on Online Dispute Resolution. International Conflict Resolution Centre in Collaboration with the United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP).

112 See Qualifying Assessment Program at <http://www.imimediation.org/>.

113 See The Chartered Institute of Arbitrators at <http://www.arbitrators.ogr>.

114 cf Cortés, P, ‘The UDRP Reviewed: The Need for a ‘Uniform’ Policy’ (2008) 14 Computer and Telecommunications Law Review 133–9Google Scholar and ‘An Analysis of the UDRP Experience: Is It Time for Reform?’ (2008) 24 Computers Law and Security Report 349–59.

115 Donahey, S, ‘The UDRP Model Applied to Online Consumer Transactions’ (2003) 20 JIntlArb 475Google Scholar.

116 Froomkin, A, ‘ICANN Uniform Dispute Resolution Policy, Causes and (Practical) Cures’ (2002) 67 BrookLRev 690Google Scholar; Geist, M, ‘Fair.com? An Examination of the Allegations of Systematic Unfairness in the ICANN UDRP’ (2002) 27 BrookJntlL 903Google Scholar; Mueller, M, ‘Rough Justice: An Analysis of ICANN's Uniform Dispute Resolution Policy’ (2000) Syracuse University Convergence Centre <http://dcc.syr.edu/PDF/roughjustice.pdf>Google Scholar.

117 Preamble, para 2.

118 The authors would like to thank Prof Vikki Rogers for raising this point.

119 See generally Cortés, P, ‘Accredited Online Dispute Resolution Services: Creating European Legal Standards for Ensuring Fair and Effective Processes’ (2008) 17 Information and Communications Technology Law 221–37CrossRefGoogle Scholar. See also Civic Consulting Presentation of the Study on a Pan-European Trustmark for e-Commerce, IMCO Committee, 28 July 2012. Available at <http://www.europarl.europa.eu/document/activities/cont/201206/20120628ATT47908/20120628ATT47908EN.pdf>.

120 See MEP Grech Draft Report (n 10) 65.

121 This has been the approach taken by the EU. See Regulation 44/2001 of 22 December on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters, (Brussels I) OJ (L 12) and Regulation 593/2008 of the Parliament and the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), OJ (L 177). cf Fernández Arroyo (n 2) 420.

122 The proposed Regulation on a Common European Sales Law recognizes that many SMEs in the EU are simply not willing to offer their products cross-border as they have to apply the mandatory rules of all 27 EU Member States, whose laws sometimes conflict with each other. Consequently, EU consumers cannot purchase such goods in other Member States and this drives up prices and decreases product availability.

123 See ICC Electronic Project (ECP)'s Ad Hoc Task Force ‘Policy Statement: Jurisdiction and Applicable Law in Electronic Commerce’ 6 June 2001; see also Regulation 861/2007 establishing a European Small Claims Procedure [2007] OJ L199/1.

124 Art 6 of Rome I Regulation (n 4).

125 See art 7.1(g) of the proposed ADR Directive which states that ADR entities must provide information about the rules that they will employ in resolving disputes, which may be not only rules of law but might also include considerations of equity and codes of conduct.

126 This new requirement is still being discussed by the European Commission on the one hand, and the Parliament and the Council on the other. See MEP Grech Draft Report (n 10) 22.

127 Art 1 of the European Commission Proposal for a Common European Sales Law COM(2011) 635 final.

128 Art 3.3.4 of the Directive on Consumer Rights 2011/83/EU.

129 Schultz (n 1).

130 Art 7. European Parliament, Committee on Legal Affairs, Draft Report on Policy Options for Progress towards a European Contract Law for Consumers and Businesses (2011/2013 (INI)) 25 January 2011, Rapporteur Diana Wallis. See also Green Paper from the Commission on policy options for progress towards a European Contract Law for Consumers and Businesses COM(2010)348 final. See Gómez Pomar, F and Gili Saldaña, M, ‘El futuro Instrumento Opcional del Derecho Contractual Europeo: Una Breve Introducción a las Cuestiones de Formación, Interpretación, Contenido y Efectos’ (2012) 12(1) Indret, Revista para el Análisis del Derecho 1–8Google Scholar.

131 Schulte-Nölke, H, ‘EC Law on the Formation of: From Common Frame of Reference to the ‘‘Blue Button’’’ (2007) 3 European Review of Contract Law 332CrossRefGoogle Scholar.

132 See G Rühl, ‘The Common European Sales Law: 28th Regime, 2nd Regime or 1st Regimen, Maastricht European Private Law Institute, Working Paper No 2012/5, 1–14; Mankowski, P, ‘Der Vorschlag für eine Gemeinsames Europäisches Kaufrecht (CESL) und das Internationale Privatrecht’, 58 Recht der Internationalen Wirtschaft, Marzo 2012, 97–105Google Scholar; de la Rosa, F Esteban and Olariu, O, ‘La aplicación de la Normativa Común de Compraventa Europea (CESL) a los Contratos de Consumo: Nuevos Desafíos para el Sistema de Derecho Internacional Privado Europeo’ (2013) 13(1) Indret, Revista para el Análisis del Derecho 1–32Google Scholar.

133 According to para 2 of the Draft Preamble, ‘the Rules are intended for use in conjunction with an online dispute resolution framework that consists of the following documents [which are attached to the Rules as Annexes and form part of the Rules]: d) Substantive legal principles for resolving disputes’.

134 cf R Brand, ‘Analysis and Proposal for Incorporation of Substantive Principles for ODR Claims and Relief into Article 4 of the Draft Procedural Rules’ (Note submitted by the Center for International Legal Education to UNCITRAL Working Group III twenty-fifth session, New York, 21–25 May 2012).

135 UNCITRAL (n 21) para 33.

136 On the requirements of the principle of legal certainty, see AE Pérez Luño, La Seguridad Juridical (Ariel 1994).

137 UDRP Policy para 4(b)

138 UNCITRAL (n 7) para 5.

139 UNCITRAL (n 7) para 5.

140 Schultz (n 15) 157–8.