1. What should the ideal ODR system for consumers look like? Dr Julia Hörnle CCLS, Queen Mary, University of London j.hornle@qmul.ac.uk

2. Two main messages l Two obstacles-one compromise: enforcability of consumer arbitration vs higher due process l Complex puzzle with many jigsaw pieces, but funding-> spreading of the risk

3. The continuum: mediation & arbitration l A skilled mediator can settle a significant percentage of disputes l But not all disputes lend themselves to a compromise l Mediation in the shadow of the law -> in the shadow of binding dispute resolution? l Mediation is an (important) filter, not an alternative

4. Fairness l Principle of party autonomy and waiver of some rights l Commercial arbitration subject to lower due process standards l Confidentiality l Exacerbating power imbalances l Consumer arbitration must comply with ‘higher’ due process standards than traditional arbitration l Balance between efficiency and fairness

5. Enhanced due process l Applying the weaker party’s mandatory laws l Independence and impartiality of the arbitrator l Independence of the institution l (Proportionate) fair hearing l Reasons for decisions and transparency l Limited judicial review/appeal??

6. How to get an arbitration agreement (pre-dispute)? l EU/EEA Unfair Contract Terms Directive 1993/13/EC –Black List to proposed Draft Consumer Rights Directive Annex II (c) COM (2008)/614 (3) –English law, not binding if amount in dispute less than £5000 l US state laws, some courts finding clause unconscionable

7. How to bring the parties to arbitration?? l Post dispute? Encouragement/Compulsion –Platform, marketplace –Payment provider referral, escrow –National enforcers, consumer protection agencies? l LEGAL OBLIGATION? l TRUST MARK l NAME AND SHAME (for example on consumer advice website) l Examples in communications and financial sector (licensing) –Domain Name Registrars & ICANN? –Still an ‘arbitration agreement ‘ under the NYC?

8. How to bring the parties to arbitration?? l Asymmetrical obligation? Consumer can choose between arbitration and litigation? l But once chosen award is binding l Who is a consumer? l How to define a power imbalance? l Combine notice & take down with arbitration for hosted content?- a new model for immunity for hosting?

9. Enforcement l Enforcement of an arbitration award through the courts- cross-border enforcement! –Award based on a ‘compulsory’ arbitration agreement enforceable under the NYC? –New Convention/Regional treaties? l Extra-legal enforcement –Same methods as mentioned above: exclusion from marketplace, trust mark, name & shame –Problematic?- UDRP compromise?

10. Who pays? l Concept of proportionate dispute resolution l De minimis? Not all consumer disputes can be solved through private redress; need for public enforcement to address wide-spread small harm l Conflict between independence of provider and payment l Public subsidy required? l Insurance, licence fees? l Both parties should pay towards the cost

11. The puzzle... l And its jigsaw pieces.... –Non-binding forms of ADR –Payment reverse mechanisms –Insurance? –Online arbitration (but de minimis) –Due process standards –Training of arbitrators –National ombudsman/arbitration schemes, networked through a clearing house system –Legal and extra-legal enforcement –New Convention? –Litigation

12. The book to the film.... l “Cross-border Internet Dispute Resolution” published by Cambridge University Press, 2009