Online Dispute Resolution-A Legal Study

1. The background and significance of the topic The study of the legal issues of Online Dispute Resolution (ODR) has both theoretical and practical value. The Digital Signature Law of the People's Republic of China (PRC China) entered into force on 1st April of 2005. The digital signature law provides a legal framework for the enforcement of electronic contracts, removes the uncertainty of electronic contracts and confirmation of agreements by electronic means, and increases the confidence of contracting parties. The enactment of the Digital Signature Law signifies that the PRC China has entered the electronic commerce era. The disputes arisen from electronic transactions are usually transnational, and require out-of-court mechanism to resolve. Online Dispute Resolution mechanism should be considered as a viable means to resolve the disputes arisen from electronic transactions. The ODR has achieved an initial result after years of experiment and development. Online Conciliation is especially successful in the recent years. However, the development of Online Arbitration is relatively slow. Nevertheless, the recent legislation of electronic transaction laws and digital signature laws provides an excellent opportunity for the development of Online Arbitration. It is important to obtain the most updated information in studying ODR, which has the similar fast changing characteristic of other online functions or services. The issues of ODR development include various aspects such as legal, technological, commercial, customer behavioral, etc. The author of this paper has studied and covered a lot of up-to-date foreign materials and primary research data. After consolidation and analysis, this preparation work should become a solid background for the legal study of ODR. 2. Major Content and Structure of this Paper This paper focuses on the legal study of ODR and concentrates on the study of Online Arbitration related legal issues. The Online Arbitration Agreement and the Online Arbitration procedural applicable laws are studied and discussed with reference to the laws and cases of China Hong Kong, Australia and Europe. Base on this study, the author hopes to provide some initial suggestions to the development of ODR in the PRC China. This paper consists of 6 chapters and has 38,000 words approximately. Chapter 1 provides the overview of ODR. The characteristics of online disputes and the importance of ODR have been analyzed. This chapter also introduces the history and the most up-to-date situation of the development of the ODR, and points out why it is necessary to study the legal issues of ODR. Chapter 2 explains the classification and characteristics of the legal issues of ODR. In particular, this chapter introduces the legal issues of Online Arbitration, and points out how the ODR conducting online and via electronic means can influence the legal issues of it. Chapter 3 studies the legal issues of Online Arbitration Agreement in ODR. In this chapter, the legal concepts and relevant laws of electronic commerce and digital signature are used in the study of the legal issues of ODR, the changing definition of the concept "in writing"applied in the Online Arbitration is discussed, the evidentialweight of the Online Arbitration Agreement is studied in details, and finally, the possible changes of the "New York Convention"related to the arbitration agreement is analyzed. Chapter 4 studies the applicable procedural laws of ODR. Based on the theory and practice of international commercial arbitration, the author analyzes the seat, the arbitration rules and arbitration laws of Online Arbitration, and suggests the future directions of choosing the seat, the arbitration rules and arbitration laws of Online Arbitration. Chapter 5 studies the development of ODR in the PRC China. After analyzing the needs and introducing the present situation of ODR development in the PRC China, the author suggests improving the ODR development environment in 3 aspects, including information communication technology, legislation, study method and education environment; and suggests introducing Online Arbitration in the existing arbitration tribunal, and making relevant policy for Online Conciliation. In the conclusion section, the author points out that the rapid changing and development of technology and online environment have introduced a lot of challenges to the legal and judicial organizations. Although the capability and the future development of ODR is still uncertainty, the legal academic study of ODR should be optimistic and maintained open-minded. Finally, the author suggests that the proposition of using ODR to solve online disputes is logical and worth further studying. 3. New Ideas of this Paper This paper focuses on the legal issues of ODR. The author gives personal opinions in the following areas: research method of ODR legal issues, concrete legal issues of ODR and the future development directions of ODR in the PRC China.About the research method of ODR legal issues, the author suggests the followings: First, theoretical study, especially legal theory study, should be added into the existing research method which focuses on experiments and positive analysis; Second, in the study of the legal issues of ODR, not only the theory and practice of arbitration should be used, the laws and related concept of electronic commerce should also be applied. This idea brings special meaning on the verge of the time when the electronic signature law of the PRC China was entered into force on 1st of April 2005; Third, technology and Internet are changing quickly and it is important to understand the up-to-date data and information of ODR development in studying the legal issues of ODR. Therefore, the author consolidates and analyzes a lot of recent primary data from various sources and believes they can be used as a background of this paper and other future research. About the concrete legal issues of ODR, the author suggests the followings: First, the legal issues caused by digitization are the first major problems in the legal study of ODR. To solve these problems, laws and concepts in electronic commerce should be used; Second, the laws and concepts of electronic commerce are applied to solve concrete legal issues of ODR, which are the format or the presentation requirement and the evidential weight problem of the electronic arbitration agreement in online arbitration; Third, Online conducting of ODR is the second major problem in the legal study of ODR. For example, it is difficult to decide the applicable law in the online situation. The author subsequently suggests the future directions of choosing the seat, the arbitration rules and arbitration laws of Online Arbitration. About the ODR development in the PRC China, the author suggests the followings: First, information communication technology, legal and research environment should be improved to facilitate the development of ODR in the PRC China; Second, with reference to the electronic arbitration of Hong Kong InternationalArbitration Centre, online arbitration can be added to the existing arbitration tribunal of the PRC China; Third, in the near future, the government can consider to launch license regulatory system for the online conciliation providers, and a professional standard assessment policy for the online mediators or conciliators, so that the online conciliation will develop healthily in China.