Global Law and Online Dispute Resolution

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Global Law and Online Dispute Resolution

• 2008 International Forum on Online Dispute
  Resolution, Victoria, June 19th, 2008

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Presentation outline

• Cyberjustice
• A global approach to ODR

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Cyberjustice

• The Normative Effects of Technological
  Architectures

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Cyberjustice
The term cyberjustice refers to the integration
of information and communication technologies
into dispute resolution processes whether they
be judicial or extrajudicial.

• The term cyberjustice refers to the integration
  of information and communication technologies
  into dispute resolution processes whether they
  be judicial or extrajudicial.

In its broadest sense, cyberjustice implies the
networking of all stakeholders in the
informational chain for judicial cases. This is
what is referred to as an Integrated Justice
Information System.
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• Cyberjustice solutions cannot and should not be
  implemented arbitrarily
• We must ensure that they serve the judicial
  process.

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• In order to do so, one must

Identify social, psychological and legal
obstacles to using certain technological solutions
Model existing procedure while taking advantage
of technological opportunities
Streamline existing procedure through
technological innovation
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• This, in a sense, is what was done when the CRDP
  launched its Cybertribunal platform

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• The next step to integrating cyberjustice into
  both ODR and classic dispute resolution is to
  use technology to reengineer, reinvent and
  replace existing procedure
• not to simply mimic current processes

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Sourcehttp//www.dailymail.co.uk/
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The fourth party, the new presence at the
table, is the technology that works with the
mediator or arbitrator. The fourth party does
not replace the third party. But it can be
considered to displace the third party in the
sense that new skills, knowledge, and strategies
may be needed by the third party. Ethan KATSH
and Janet RIFKIN, Online dispute resolution, San
Francisco, Jossey-Bass, 2001, p. 94.
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But before seeing how Cyberjustice in general and
ODR in particular can revolutionize legal
proceedings, its necessary to understand if (and
how) it can be incorporated into both national
and international legal regimes
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A global approach to ODR

• How international norms can affect ODR development

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A positivist approach

• Questions regarding enforcement
• Mediation A transaction (according to Civil Law
  doctrine) or settlement agreement (according to
  Common Law doctrine) which can be enforced by the
  Courts if conflicts or lawsuits arise
• Arbitration The Convention on the Recognition
  and Enforcement of Foreign Arbitral Awards (The
  New York Convention, 1958) allows for reference
  to national judicial systems.

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A pluralist approach

• Fragmentation of the legal monopoly held by
  sovereign nations
• Competition between sovereignties (or, rather,
  normativities)
• Incapability for sovereigns to deal with global
  stakes (the normative power of sovereigns is
  territorial by nature)

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Legal orders

• New Legal orders are constantly being put into
  place
• European Union
• NAFTA
• ICANN
• International criminal tribunals
• Etc.
• Not a new phenomenon - during the Middle Ages,
  there were a plurality of Legal orders
• Royal Law
• Lex Mercatoria
• Canon Law
• Urban Law
• Feudal Law
• Etc.
• Autonomous orders relevant or irrelevant
  according to a given states Legal order.

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Leges mercatorum

• For transnational commerce many normative
  corpuses
• Development of rules and practices for ecommerce
  and its dispute resolution models
• The ICANN example drafting, administration and
  interpretation of rules.

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www.crdp.umontreal.ca
Thank you!
Karim Benyekhlef Professor
Director of the Centre de recherche en
droit public Faculté de droit
Université de Montréal P.O. Box 6128,
Downtown Stn Montreal (Quebec) CANADA
H3C 3J7 Tel. [phone]
Fax [phone]