Outside a handful of payment intermediaries, consumers have no practical legal protections if they decide to buy cross-border, and, as a result, they do not, to the detriment of consumers and businesses. Businesses have lost market opportunities because the legal risks and associated costs are too great.
Consequently,markets are isolated and practical and effective redress for consumers and businesses that do engage in cross-border exchange is practically non-existent.
This chapter proposes that the question of whether the creation of a widespread cross-border redress system is necessary and possible is past history. Rather, the pertinent questions for this decade and beyond concern the scope of such a system, the legal instruments needed to support the system, the logistics and technological building blocks of the system, and identification of the appropriate players that will alter traditional notions of redress to obtain “rough justice”.
ODR is the progressive option to fill the current legal and marketplace gap. It represents a dynamic process that can evolve with the changing marketplace and technological opportunities while preserving the states, individuals and merchants interests.
ODR for high-volume, low-value cross-border e-commerce is also the Petri dish to test new possibilities to address the changing perspectives on the role of the judiciary in providing redress in the new technologically-driven globalized marketplace, as well as redress in the context of particular domestic law disputes where it is clear traditional systems either no longer address the current needs or even exist.
This chapter advocates the position that discussions surrounding the adoption of traditional mechanisms and legal constructs to future marketplaces reflects obsolete thinking and suggests that we must fundamentally challenge the lens through which we see the legal world. I propose that concepts of redress – including the systems and law in which we operate – must change to reflect the merger between the physical and virtual world.
This chapter firstly explores the changes that catalyzed this new frontier, namely the existence and role of internet intermediaries in the online commercial marketplace; secondly, initiatives by inter-governmental agencies and NGOs to provide legal instruments and protocols to support regional and global ODR mechanism; and thirdly, potential challenges in the creation of a global ODR mechanism.