1. ODR and the Administration of Justice An Asian Perspective Emeritus Professor Mary Hiscock Bond University 10/13/20151 Fresh look at Online Dispute Resolution and Global E Commerce

2. Opening Summary My perspective is from within Asia My perspective is from within Asia The priority is locally culturally appropriate systems for ODR cross-border consumer transactions rather than global solutions The priority is locally culturally appropriate systems for ODR cross-border consumer transactions rather than global solutions FTAs may be vehicles for progressing discussions and developing the requisite infrastructure FTAs may be vehicles for progressing discussions and developing the requisite infrastructure 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 2

3. 3 Accepted Objectives of ODR Meeting Commercial Needs of Disputants Meeting Commercial Needs of Disputants Clarity and Finality of Outcomes Clarity and Finality of Outcomes Limitation of Transaction Costs Limitation of Transaction Costs Upholding of public policy Upholding of public policy Satisfying broader societal needs and interests Satisfying broader societal needs and interests 10/13/2015

4. Context Focus is Consumer Protection in ODR Focus is Consumer Protection in ODR Broader context is Asian high user nations Broader context is Asian high user nations States have worked out national interests in context of municipal law States have worked out national interests in context of municipal law Convergence of law on underlying rights Convergence of law on underlying rights Based on foreign models Based on foreign models Less tailored development of process Less tailored development of process 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 4

5. Emulation of European Law Australia Australia Indonesia Indonesia Japan Japan Korea Korea Malaysia Malaysia The Phillipines The Phillipines Taiwan Taiwan Thailand Thailand 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 5

6. Access to Justice a State Responsibility Not sufficient to create rights and obligations Not sufficient to create rights and obligations Must also establish effective remedies Must also establish effective remedies Can be done directly Can be done directly Or by facilitation and regulation of private dispute resolution mechanisms Or by facilitation and regulation of private dispute resolution mechanisms Could be a function of established centres Could be a function of established centres 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 6

7. Late C20th Complications Increased cross border consumer transactions Increased cross border consumer transactions Ambiguity of concept of place Ambiguity of concept of place Conflicting pressures from WTO – liberalisation and market access v consumer protection Conflicting pressures from WTO – liberalisation and market access v consumer protection Increased use of cross border arbitration Increased use of cross border arbitration 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 7

8. Can national solutions just cross borders and systems? Asynchrony is the problem Asynchrony is the problem Assumption that greater use of online transactions = sophistication Assumption that greater use of online transactions = sophistication Assumption that cultural and language barriers irrelevant Assumption that cultural and language barriers irrelevant Assumption that national balance of interest still rules Assumption that national balance of interest still rules 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 8

9. Some Figures Asia has 42% of world users of internet Asia has 42% of world users of internet Europe has 24% Europe has 24% The Americas have 25% The Americas have 25% Asia has 738 million users in September 2009 Asia has 738 million users in September 2009 Asia had 460 million in 2007 - but Asia had 460 million in 2007 - but Fastest growing area is the Middle East Fastest growing area is the Middle East 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 9

10. Culture Clash Survey by Siew & Leonard in 2008 Survey by Siew & Leonard in 2008 Conclusion Conclusion ‘If English used to the exclusion of other languages, an ODR model based on linguistic functional and cultural Western homogeneity is itself a biased flawed and ethnocentric process’ ‘If English used to the exclusion of other languages, an ODR model based on linguistic functional and cultural Western homogeneity is itself a biased flawed and ethnocentric process’ 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 10

11. Different cognitive processes Chinese, Japanese, Korean and Arabic stimulate different hemisphere of brain Chinese, Japanese, Korean and Arabic stimulate different hemisphere of brain English is less visual English is less visual Epistemology of thought differs between Asians and non-Asians Epistemology of thought differs between Asians and non-Asians Transplants of process between cultures are risky Transplants of process between cultures are risky 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 11

12. The good news Taking all that into account – and Taking all that into account – and That 85% of communication is non-verbal That 85% of communication is non-verbal A solution could be found if technology A solution could be found if technology Uses multiple processes that are “culturally smart” and Uses multiple processes that are “culturally smart” and Adapts to each user and each concept of a dispute Adapts to each user and each concept of a dispute 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 12

13. HOW TO PROGRESS Co-operative undertakings can be incorporated in bilateral and regional free trade agreements Co-operative undertakings can be incorporated in bilateral and regional free trade agreements ASEANANZ-FTA 2009 & APEC MOU ASEANANZ-FTA 2009 & APEC MOU ASLI Principles of Asian Consumer Law ASLI Principles of Asian Consumer Law ASEAN Regional Cross-Border Small Claims Procedure ASEAN Regional Cross-Border Small Claims Procedure 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 13

14. A global solution This must develop incrementally This must develop incrementally Supported by science and technology Supported by science and technology And by international legal framework And by international legal framework Cultures have their own rhythm of change Cultures have their own rhythm of change Must be a consultative and mutual process Must be a consultative and mutual process It will not necessarily nor desirably be driven by Western institutions It will not necessarily nor desirably be driven by Western institutions 10/13/2015 Fresh look at Online Dispute Resolution and Global E Commerce 14

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