Continued from Part 1:
The ODR Regulation complements the directive by requiring the European Commission to run an ODR platform, which is in essence a web site that acts as a hub to channel all consumer complaints arising from e-commerce to these certified ADR entities. The platform, which started operating in February 15 2016, allows consumers (and merchants, when the national law permits) to submit complaints related to online contracts in all the EU languages. All merchants operating online and online market places established within the European Union (such as Amazon) have the obligation to provide an easily accessible link to the ODR platform.
At the same time, because the focus of the EU platform will inevitably be on cross-border issues, a number of EU countries, including Belgium, have already built or are building national ODR platforms to complement the EU platform.
The Role of Online Courts – Changes in England and Wales
Perhaps one answer lies in technology. EU member states could do more to promote traders’ adherence to ADR by offering these consumers (who cannot use ADR because traders refuse to participate in the ADR process) with an effective dispute resolution forum with residual jurisdiction. National governments could consider at least the following three options: they could sponsor a statutory ADR/ODR entity, following the parameters of those already operating on a sectorial basis; they could develop an online consumer tribunal along the lines of the Civil Resolution Tribunal that is being launched in British Columbia; and they could develop a much improved and user-friendly online small claims court, such as the one that is now being considered in the United Kingdom. Indeed, tribunals and courts can also incorporate triage and ADR in their small claims procedures, offering a multi-door process that accommodates the forum to the fuss, without the need for legal representation.
The UK experience kicked off with the efforts of the Civil Justice Council, an independent body advising the Ministry of Justice on civil procedure, which produced a report back in February 2015 asking the UK government to equip the civil courts with technology and a tiered procedure that enables self-represented litigants to settle and resolve low-value claims online. Soon thereafter JUSTICE, a nonprofit human rights organization, also recommended a similar overhaul in the civil courts. Key to these proposals are the roles of facilitators who would help litigants without legal representation settle their claims expeditiously through ADR/ODR, or in some cases, help them prepare for trial. These proposals have recently received the endorsement of the judiciary of England and Wales in a landmark report drafted by Lord Justice Briggs, a Court of Appeal judge, that reviews the structure of the civil courts. The report proposes measures to address the reality that English courts are now beyond the reach of most citizens for low- and medium-value disputes.
Lord Justice Briggs’s main proposal is the creation of an online court for claims under £25,000 (approximately $35,800 in US dollars). The proposal for the online court is expected to be implemented in 2017 on a pilot basis, given that the UK government has already committed £700 million (more than $1 billion US) to fully digitalize the court system and create a more modern operation. Part of this money is expected to be allocated for the creation of the online court, which would have its own procedure designed for self-represented litigants. In a way, the proposed court would depart from the traditional adversarial process, operating instead an online tiered procedure with three main stages. The first stage would be a fully automated triage process in which parties would be required to fill in an online claim form and offered simple commoditized online advice. In the second stage, the case would be passed to a case officer, who would offer a mix of mediation services and case management, both online and via the telephone – and ideally, settle the majority of cases. In the third stage, unresolved disputes would be sent to a judge for final determination on the documents (and occasionally, when necessary, via telephone, video, or face-to-face hearings). A final fourth stage may be incorporated to streamline the enforcement of judgments through an online process.
The proposals have encountered criticism from some members of the legal profession, who may see their business threatened (though low-value disputes are far from their bread and butter), and it was received with skepticism by those who question the success of government-sponsored IT projects. Yet most observers agree that English courts are in great need of modernization, especially now that secure online communications are possible.
Pablo Cortes is a Professor of Civil Justice at Leicester Law School, University of Leicester in England. He can be reached at [email protected]
Continued in Part 3 forthcoming next week…