Alternative Dispute Resolution (=ADR) is a generic reference to consensus-based processes that provide an alternative to litigation and to binding arbitration procedures. Analysing European provisions, the European legislator pushes Alternative Dispute Resolution methods as a means of resolving not only consumer-to-business disputes but also business-to-business. This may determine over the long term a sort of ‘dejurisdictionalization’ process, moving disputes from tribunals to Alternative Dispute Resolution methods. Procedural rights, however, such as raising interpretative questions to the European Court of Justice, may only be exercised before a court. |
Search result: 115 articles
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Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | European legislation, Alternative Dispute Resolution, civil procedure |
Authors | Rebecca Berto |
AbstractAuthor's information |
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Towards Online Dispute Resolution-Led Justice in China |
Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | Online Dispute Resolution, smart court, internet court, access to justice, China |
Authors | Carrie Shu Shang and Wenli Guo |
AbstractAuthor's information |
The use of online dispute resolution (ODR) in courts is a growing topic of interest. By focusing on the recent development of ODR-connected smart courts in China, this article explores ODR’s potential impact on Chinese legal systems from three aspects: role of courts and the legal profession, due process rights, and information safety. By focusing on changing dispute resolution theories – from emphasizing on conflict resolution to dispute prevention – the article argues that ODR-led court reforms rose to the centre because the reform caters to specific purposes of the recent series of reforms conducted under the auspices of the Rule of Law campaign, by prioritizing efficiency goals and attempting to enhance individualist justice experiences. In this article, we define the meaning of ODR in China and describe and categorize ODR technologies that are currently in use in China. Based on these general findings and promising technological options of ODR, we also recommend ways to better implement ODR in Chinese courts to take full advantage of technological advancements. |
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Paperless ArbitrationThe New Trend? |
Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | paperless arbitration, arbitral practice and procedure, cybersecurity, new technology |
Authors | William Brillat-Capello, Laura Canet, Gillian Carmichael Lemaire e.a. |
AbstractAuthor's information |
A webinar organized by Laura Canet and William Brillat-Capello, with Gillian Carmichael Lemaire, Yulia Mullina, Sebastián Partida, Sarah Tulip, Sergey Alekhin as speakers |
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Smart Contracts and Smart Dispute ResolutionJust Hype or a Real Game Changer? |
Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | smart contracts, blockchain, arbitration, dispute resolution, contract law, distributed ledger technology, internet of things, cyber law, technology, innovation |
Authors | Mangal Chauhan |
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This article explains the functioning of smart contracts and technology underlying blockchain. This contribution aims to compare smart contracts with traditional contracts and discuss their situation under the present contract law. It further discusses possible issues that may arise out of the application of smart contracts, for instance, coding errors and programming defects. It studies the possible application of smart contracts to specific fields, such as e-commerce and consumer transactions and possible disputes arising out of this application. It divides the smart contracts into categories based on their form and discusses legal issues in regard to their application. |
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Increasing Access to Justice through Online Dispute Resolution |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | ODR, fairness, disability, accommodation, accessibility |
Authors | Wendy Carlson |
AbstractAuthor's information |
Online dispute resolution has been posed as a way to further increase access to justice. This article explores the concept of using ODR to increase both ‘access’ and ‘justice’ within the dispute resolution system. The concept of increasing access to the dispute resolution system includes a wide variety of ideas: providing dynamic avenues into the legal process to better serve more people, particularly those with physical disabilities, increasing accessibility to low-income communities and ensuring the platform can be used by non-native English speakers. ODR provides the potential to greatly impact the court system by making the court process more efficient and accurate. While there is great value in integrating ODR into the dispute resolution system, the ODR system itself creates a variety of barriers. In order to effectively increase access to justice through ODR, the ODR system must be developed to maximize ‘accessibility’. The second prong to this discussion explores the concept of ‘justice’ within the context of ODR. Critics of ODR purport that the system values efficiency over justice. This article analyses the legitimacy of ODR as a judicial system through three key factors: representation of individual views, neutrality in decision-making, and trust. |
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The Role of the Seat in Smart Contract Disputes |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | smart contracts, international commercial arbitration, blockchain technology, online arbitration |
Authors | Diana Itzel Santana Galindo |
AbstractAuthor's information |
Over the past few decades, international commercial arbitration has experienced major developments in various fields. A major recent development that will spread widely in the years to come relates to technology and the necessity of international commercial arbitration to adapt to the new needs of the market. The path of technological development in commerce is determined by forces other than the needs of legal practitioners. Moreover, the lack of real connection to a sole place, in disputes where the multi-parties have not selected the seat, can create serious obstacles for the arbitral proceedings in blockchain technology disputes. In this regard, smart contracts, however, appear to have identifiable parties with an identified physical point of connection that ultimately can be adapted to the existing place of the arbitration theory within the international arbitration legal framework. |
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Online Dispute Resolution in a Traditional Justice System |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | ODR, traditional justice system, insecure areas, Afghanistan |
Authors | Fathudin Yazdani |
AbstractAuthor's information |
This article examines the applicability of Online Dispute Resolution (ODR) in Afghanistan. It evaluates whether ODR can resolve disputes in a traditional justice system, like Jirga, where the formal justice system is weak. This analysis questions whether ODR can complement the traditional jurisdiction system, where the public relies on customary practices to solve disputes. Further, the analysis focuses on the applicability of ODR in insecure areas, where access to formal judicial processes is limited. The findings from this study suggest the development of effective dispute resolution mechanisms in Afghanistan, mainly using ODR. |
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The Online Civil Money ClaimLitigation, ADR and ODR in One Single Dispute Resolution Process |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | ADR, pre-action protocols, civil procedure, online dispute resolution, mediation, civil justice, online civil money claim, online services |
Authors | Md Mahar Abbasy |
AbstractAuthor's information |
This article considers the recent reforms in English Civil Justice System, especially the new Online Civil Money Claim (OCMC). To make the UK courts easily accessible and affordable, Lord Justice Briggs in his Civil Courts Structure Review recommended for the introduction of an Online Solutions Court. This is a revolutionary step because it embeds alternative dispute resolution (ADR), in particular mediation, into the court system. This is very important because mediation emerged as an alternative to courts but has become an integral part of it. This study critically examines how mediation is being embedded into the English Civil Justice System and argues for a balanced relationship between litigation and mediation because they complement each other. This article is divided into four sections (a) Section 2 will discuss how the Online Court will impact the open justice; (b) Section 3 will provide an overview of the three stages of OCMC; (c) Section 4 will carry out a critical analysis of the OCMC; and (d) Section 5 will seek to put forward solutions and recommendations in light of the findings. |
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Artificial Intelligence in the CourtroomIncreasing or Decreasing Access to Justice? |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | artificial intelligence, robojudge, separation of powers, algorithm, due proces |
Authors | Analisa Morrison |
AbstractAuthor's information |
Jurisdictions around the world are experimenting with the use of artificially intelligent systems to help them adjudicate cases. With heavily overloaded dockets and cases that go on for years, many courts in the U.S. are eager to follow suit. However, American authorities should be slow to substitute human judges with automated entities. The uniqueness of the U.S. Constitution has demands that artificially intelligent “judges” may not be able to meet, starting with a machine’s lack of what may be called “true intelligence”. Philosopher John Searle wrote about the distinction between true intelligence and artificial intelligence in his famous “Chinese Room” analogy, which is applicable to the discussion of artificial intelligence in the courtroom. Former Navy Reserves officer, robotics engineer, and current patent lawyer Bob Lambrechts analyzed the idea of robots in court in his article, May It Please the Algorithm. Other scholars have started to explore it, too, but the idea of robots as judges remains a vast legal frontier that ought to be excavated thoroughly before it is inhabited by the American legal system. |
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E-MeasuresInternational Arbitral Institutions’ Responses to COVID-19 |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | international arbitration institutions, COVID-19, availability of e-filing, e-measures |
Authors | Kendra Magraw |
AbstractAuthor's information |
This article will briefly and non-exhaustively examine the emergency measures taken by some international arbitral institutions in response to the COVID-19 pandemic. Such emergency measures, as will be seen, were primarily and due to necessity geared towards moving arbitrations online. Section 1 briefly describes some reasons why the status quo prior to COVID-19 for certain arbitral institutions likely made it necessary to implement e-measures: in other words, it will provide examples of the types of constraints that may have previously prevented arbitral institutions from being more electronic/online. Section 2 broadly identifies the e-measures taken by arbitral institutions, and extracts some general trends therefrom. Finally, Section 3 will offer some brief conclusions and thoughts concerning the future of such e-measures. |
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‘Firewalls’ to JusticeCan Barriers in Censorship Practices Lead to Advancements in Online Dispute Resolution? |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | online dispute resolution, system design, access to justice, artificial intelligence, intellectual property, blockchain, information communication technology, COVID-19 |
Authors | Shirin Ghafary |
AbstractAuthor's information |
This article will discuss how we can learn from barriers of internet censorship to create opportunities for better access to the justice system through newer and more reliable Online Dispute Resolution technology. These advancements in technology can help in the application of security measures for materials disclosed in the use of online dispute resolution (ODR) platforms and reduce people’s fears of privacy concerns. This in turn will promote the use of ODR and provide greater access to the justice system, especially for those people who cannot afford more traditional forms of legal services by making more convenient platforms that are less costly, less time consuming, and more readily available to people via their laptops. Technology is advancing and it is advancing fast, we choose whether we advance with it or stay behind. The COVID-19 pandemic has shown us the vulnerabilities of our society and how technologically far behind we are, perhaps it was just the push that we needed. |
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The Value of Online Dispute Resolution in Family Law |
Journal | International Journal of Online Dispute Resolution, Issue 1 2020 |
Keywords | online dispute resolution, family law, access to justice, domestic relations cases, online mediation |
Authors | Margaret M. Huck |
AbstractAuthor's information |
Online dispute resolution is an incredibly powerful tool for litigants, particularly in the area of family law. In the United States, courts with flooded dockets in both metropolitan and rural areas have employed various online systems and software programs to help parties better work through issues. While ODR can provide such benefits as a quicker and less expensive resolution, it also presents some concerns which need addressed by the legal community. For example, many who would otherwise benefit from ODR may struggle with access to the necessary technology, or could greatly benefit from advice on how to phrase opinions in a neutral manner, so as not to derail an emotionally charged discussion. Further, while a history of domestic violence among parties necessitates screening, it is possible that they may be able to utilize ODR if counsel is present. Finally, to promote candor and problem-solving among the parties, all ODR platforms should be as secure as possible. |
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Smart Legal ContractsA Shift in Conflict Prevention and Dispute Resolution |
Journal | International Journal of Online Dispute Resolution, Issue 2 2019 |
Keywords | smart contracts, blockchain, contracts, conflict prevention, ODR |
Authors | Aura Esther Vilalta Nicuesa |
AbstractAuthor's information |
This article is aimed at clarifying the legal implications of blockchain when applied to contracts and the impact of smart contracts in conflict prevention and dispute resolution. |
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APEC Online Dispute Resolution Framework |
Journal | International Journal of Online Dispute Resolution, Issue 2 2019 |
Keywords | APEC, ODR, e-Commerce, small business, dispute resolution |
Authors | Michael J. Dennis |
AbstractAuthor's information |
The Internet and communications technology are changing every aspect of our lives. Now ODR is set to revolutionize commercial dispute resolution across APEC with the adoption of a new ODR Collaborative Framework. In this article, we will look at the challenges APEC small businesses face today and how the APEC ODR Collaborative Framework provides a much-needed solution to improve justice and boost trade. |
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Where Have All the Lawyers Gone?The Empty Chair at the ODR Justice Table |
Journal | International Journal of Online Dispute Resolution, Issue 2 2019 |
Keywords | legal profession ODR, system design, courts, legal practice |
Authors | Noam Ebner and Elayne E. Greenberg |
AbstractAuthor's information |
We are currently witnessing a revolution in access to justice and a parallel revolution in justice delivery, design and experience. As dispute resolution design scholars tell us, the implementation of any new dispute intervention plan in a system should involve all of its stakeholders from the beginning. In our justice system there are three primary stakeholders, who have been traditionally involved in processes of innovation and change: the courts, the parties and the lawyers. Courts and parties have been involved in the development of online dispute resolution (ODR). However, one significant justice stakeholder, the legal profession, has been relatively absent from the table thus far – whether by lack of awareness, by lack of will or innovative spirit or by lack of invitation: lawyers. |
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Ethical Technology RiskHow to Identify What Is Reasonable Data Protection for ODR |
Journal | International Journal of Online Dispute Resolution, Issue 2 2019 |
Keywords | ODR, security, data security, ethics, risk assessment |
Authors | Chris Draper and Angie Raymond |
AbstractAuthor's information |
This is a written representation of the presentation given on 29 October 2019, at 3:20 pm Eastern at the NCSC ODR2019 Summit held at the Colonial Williamsburg Lodge in Williamsburg, VA. |
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Making Project Decisions VisibleOnline Dispute Resolution Project Design, Structured Decision-Making and Visual Information Tools |
Journal | International Journal of Online Dispute Resolution, Issue 2 2019 |
Keywords | visual facilitation, cognitive overload, decision-framing, online dispute resolution project planning |
Authors | Sharon Sturges and Susanne van der Meer |
AbstractAuthor's information |
The authors presented on this topic during the International ODR Forum 2019 in Williamsburg, Virginia. The goal of this presentation was to share practices and ideas that have worked well in the design phase of an Online Dispute Resolution (ODR) pilot project for the State Courts of Colorado. |