ODR and E-Commerce


by Aura Esther Vilalta

This chapter is from "Online Dispute Resolution Theory and Practice," Mohamed Abdel Wahab, Ethan Katsh & Daniel Rainey ( Eds.), published, sold and distributed by Eleven International Publishing. The Hague, Netherlands at: www.elevenpub.com.

March 2013

Aura Esther Vilalta

The Internet is a powerful technology that enables fast communication, both internationally and locally, and changes behaviors that involve the use and processing of information. Cyberspace, as a consequence, has become a new realm of commerce and a market with various kinds of transactions using acronyms such as: C2C, B2C, B2B, C2B or M2B.

The Internet removes traditional barriers between “offerors” (producers, sellers, etc) and “offerees” (clients, users, consumers.). Time, geographical distance and language are no longer obstacles to trade and, consequently, cross border disputes have also increased.


In this environment, courts have been losing effectiveness in handling the needs of parties because costs are too disproportionate and proceedings long and cumbersome. Online Dispute Resolution (ODR) mechanisms have emerged, therefore, as a natural response to this international process with the aim of providing an effective way to overcome the existing gap.

The European Union Communication from the Commission on The Out-of-Court Settlement of Consumer Disputes of 1998 clarified the scope of challenges consumers face. In brief, it recognized that there are three possible ways of improving access to justice:

(i) simplification and improvement of legal procedures,
(ii) improvement of communication between professionals and consumers,
(iii) and the use of out-of-court procedures to settle consumer disputes. Most importantly, it indicated that “far from being alternatives, these three approaches are fully complementary”.

However, a fundamental difference distinguishes the first approach from the other two. While the first approach remains within the traditional framework of the judicial settlement of disputes and aims to improve the existing systems, the other two remove these disputes from the judicial arena wherever possible. This approach can assist us in drawing the initial boundaries of ADR/ODR methods.




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Biography




Aura Esther Vilalta is a Senior lecturer at Faculty of Law, Open University of Catalonia (UOC), researcher at the Internet Interdisciplinary Institute (IN3), associate lecturer at Ramon Llull University (ESADE) and spanish national representative at the United Nations, Working Group III (Online Dispute Resolution), UNCITRAL. Vilalta teaches civil law, commercial Law and ODR at the Master of Information and Comunication Society, is member of the the Barcelona Bar Association (Spain), fellow at the National Center of Technology and Dispute Resolution( NCTDR. Umass, USA), fellow at the Association for Conflict Resolution (ACR, USA) and member of the research group for the White Book on Mediation in Catalonia (Departmen tof Justice, Government of Catalonia). Her research is focused on ODR, information and communication technology and consumer’s protection.



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