“ONLINE DISPUTE RESOLUTION: SCOPE AND MATTERS ARISING”Nwandem Osinachi Victor L.

LL.B (RSUST), B.L, LL.M CandidateUniversity of Ibadan.

Email: osinachinwandem@yahoo.comPhone: 08039579333

ABSTRACT

With commercial transaction now making wave in the cyberspace, online disputebecomes inevitable. This has led to the evolution of Online Dispute Resolution (ODR).Since its emergence, ODR has shown itself capable of resolving online disputesespecially with regards electronic commerce (e-commerce). Just like traditional ADR,ODR makes use of ADR mechanisms such as arbitration, mediation and negotiation.The only difference is that these ADR mechanisms are employed online. One area ofODR that has won the attraction of international organizations and private institutionsis online arbitration. Online arbitration has mostly been used to resolve both online andoffline disputes. Resolving disputes via online arbitration is similar to traditionalarbitration except that disputes are resolved using various technological devices suchas video-conference, e-mail, chats and electronic signature (e-signature). The ODRprocess has been hailed for its simplicity, speed, convenience and been least expensivewhen compared with traditional ADR and litigation. On the other hand, the process hasbeen criticized as lacking face to face encounter, having security and confidentialityissues, problems with e-arbitration agreements and awards amongst many others. Thegood news is that most of these challenges are solvable thus, establishing ODR as aviable online equivalent of alternative dispute resolution.

Keywords:Online Dispute Resolution (ODR), Alternative Dispute Resolution(ADR), e-commerce, Internet, Cyberspace, Online Arbitration,Arbitration, Mediation and Negotiation.

INTRODUCTION

The internet has truly emerged as a real global, borderlessmarket place where anyone having access to a computer linked tothe World Wide Web may participate in some sort of internationalcommercial transaction. Commerce inspired by high technology has

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now transformed itself into electronic commerce and the internethas become a new, fast-developing means of communication and anew business tool.1 Electronic commerce (e-commerce) is one ofmany things that trace people to the cyberspace, as evidenced bythe frequent traffic to commercial websites.

Nigeria is not left out of this innovation as so manybusiness organisations have resorted to doing business online.For example, organisations like Jumia and Konga has made life soeasy for Nigerians through their online supermarket. Now one canin the comfort of his/her home and at any time transact businessonline and also have their goods delivered to them at their doorstep. With this new form of transacting came new types ofdisputes. The sheer volume of transactions that occur over theinternet, along with expectation of users for remote, impersonaland efficient communication, rendered traditional and litigationor court-annexed dispute resolution processes ill-suited toaddress the resulting disputes2. To ensure that all partiesconcerned will feel they can safely participate in e-commercetransactions it became imperative that e-disputes be resolvedadequately. Accordingly, rather than wait for the traditionaljustice and dispute resolution frameworks to create alternativeprocesses, the internet began creating its own new methods. Theresulting techniques and processes came to be called ODR.3

This paper introduces ODR as another important aspect ofAlternative Dispute Resolution online. Part I of this paperdiscusses the scope of ODR. It provides a brief overview of ODRand describes its evolution and growth so far. It defines ODR andalso highlights the various ODR mechanisms. Part II focuses ononline arbitration which is one of the mechanisms of ODR andnarrates in details the procedure of online arbitration. ODR’sbenefits are also discussed in this part. Finally, Part III1 Biukovic, L., 2002, International Commercial Arbitration in cyberspace: Recent Developments,Northeastern Journal of International Law and Business, vol. 22: Issue 3.Available at http://scholarlycommons.law.nortwestern./edu/njilb/vol22/iss3/20(last visited on 14th December, 2014). op.cit. p. 340.2 Thompson, D., 2014, “The Growth of Online Dispute Resolution and its use in British Columbia”.Available at https://www.cle.bc.ca/PracticePoints/LIT/14-GrowthODR.pdf (lastvisited on 21st December, 2014). 3 Ibid.

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discusses the matters arising in ODR. It discusses severalchallenges faced by ODR and also proffers solutions. It alsohighlights several conditions to be met if ODR is to becomesuccessful in resolving online disputes.

PART I: NATURE AND SCOPE OF ONLINE DISPUTE RESOLUTION

As noted in the introduction, online Dispute Resolution(ODR) is an innovative way to resolve grievances, issues ordisputes especially with regards e-commerce. Online disputeresolution thus means different things to different people and assuch a straight forward definition as to what this concept meanshas proven difficult. Many authors have defined ODR. ODR has beendefined as the resolution of disputes that result from onlineconduct4. In giving a simple and precise definition, Morekdefined ODR to mean resolving disputes on the internet.5 From thedefinitions given so far, it can be summarized that ODR is onlyconcerned with internet disputes6

It is fair to state that ODR emanated from traditionalAlternative Dispute Resolution (ADR). For this reason, manyauthors have seen ODR simply to mean using the internet toprovide ADR. According to Arun, ODR involves the use ofinformation technology to facilitate the application oftraditional alternative dispute resolution mechanisms in thecyberspace.7 Being an offspring of ADR, ODR uses the various ADRmethods to settle online disputes. Thus, ODR can be defined asthe deployment of application and computer networks for resolvingdisputes with ADR methods.8

4 Gralf-Peter G, 2003, Online Dispute Resolution: Consumer Redress in Global Market place.Vol 7 No.8 German Law Journal 647 at p. 651.5 Rafal M., 2005, Regulation of Online Dispute Resolution: Between Law and Technology.Available at http://www.odr.info/cyberweek/Regulation%20%of20ODR_Rafal%20Morek.doc. (Last visited on 14th December, 2014).6 Some authors use cyberspace or online in place of internet.7 Arun R. 2007. The Legal Challenges Facing Online Dispute Resolution: An Overview. Availableat http://www.galexia.com/public/research/articles/research_articles-art42.html. (Last visited on 11th December, 2014). 8 Van den Heuvel E. Online Dispute Resolution as a Solution to Cross-border E-disputes: AnIntroduction to ODR. Paper presented at Building Trust in the online environment:

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Online Dispute Resolution is a branch of dispute resolutionwhich uses technology to facilitate the resolution of disputebetween parties.9 This technology which is also ICT has beennamed by Katsh and Rifkin as the “fourth party” because ODR isseen as an independent input to the management of dispute10

ODR is particularly convenient and efficient where partiesare located at a distance, hence, it discards the need to travelsince parties can communicate even at a distance. It can be usedto resolve internet related disputes more particularly e-commercedisputes. Asides disputes arising from online interactions andtransactions, ODR can also be used for traditional offlinedisputes.11

Being a contemporary issue in the ADR community, ODR hasattracted so many authors. Most of these authors have furtherdescribed ODR using other names. Some of the names used are:12

a. Internet Dispute Resolution (iDR).b. Electronic Dispute Resolution (eDR).c. Electronic ADR (eADR).d. Online ADR (oADR).

The above names have been used interchangeably by variousauthors. However ODR has emerged as the most used term in recentyears.

2. ODR METHODS

Business to customer Disputer Resolution, a conference jointly organized byOrganization for Co-operative Development (OECD), Hague conference on Privateand International Law and International Chamber of Commerce (ICC). The Hague,11-12 December 2002, The Hague. Available athttp://www/oecd.org/dataoecd/63/57/1878940.pdf(last visited on 14th December2014).9 Petrauskas F and Kybartiene E. 2011, Online Dispute Resolution in Consumer Disputes. Available at http://www.mruni.eu/en/mokslo_darbai/jurisprudencija/ (last visited on 14th December, 2014). p.922.10 Katsh, E and Rifkin, J. 2001, Online Dispute Resolution: Resolving conflicts in cyberspace.Jossey-Bass: San Fransico at p. 93-117.11 “Traditional offline dispute refers to disputes that do not occur online.12 Petrauskas F. and Kybartiene E., op.cit. at p. 926

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As stated earlier, ODR makes use of traditional ADRmechanisms. The only difference here is that these mechanisms aredeployed in resolving online disputes. At the moment, there arethree major types of ODR system. We shall briefly discuss thembelow:

a. Online Negotiation:

Parties can use online negotiation to resolve theirdisputes. Here, the financial claims can be settled via onlinenegotiation. Online negotiation is currently the most developedform of online dispute resolution in the US.13 Simply put, onlinenegotiation is using an expert system to automatically settlefinancial claims. One technological platform currently thrivingin online negotiation is automated negotiation commonly known as“blind-bidding’. This is a negotiation process designed todetermine economic settlement for claims which liability is notchallenged. This form of ODR is suitable in situations where theliability of the party is not in dispute, but the parties cannotagree on the amount of compensation – payable.14 The entireprocess is driven by software without the need for humanintervention. In blind-bidding, the disputants submit monetarybids for a specified number of rounds. The bids represent theamount one party is demanding and the other is offering in orderto resolve the dispute. If at any stage the amount of the offerexceeds the demand, the dispute is considered resolved. If on theother hand, the bids submitted are within the given range of bothparties, the dispute is settled for an amount representing theaverage of the two bids submitted.15 The first website to offeronline negotiation of financial claims was cybersettle followedby clicknsettle.

13 Van den Heuvel E., op.cit at p.8.14 Hornle, J., 2002, ODR in Business to Consumer e-commerce Transactions. Journal of information Law and Technology, No.2. p. 5. Available at http://www2.warwick.ac.uk/fac/soc/law/elj/ (Last visited on retrieved on the 14th December, 2014).15 Conley T.M. and Bretherton D., 21 March 2003, Research into Online Alternative DisputeResolution, Exploration report, International Conflict Resolution Centre, University of Melbourne. p 17.

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B. Online Mediation:

This is another thriving ODR method used in Europe and US.Online mediation is currently being offered by severalorganisations. Mediation firms have established websites tofacilitate the resolution of disputes. These websites make use ofonline technologies such as email, chat rooms and instantmessaging in addition to the communication methods used intraditional (offline) negotiation process.16 A typical onlinemediation procedure takes place as follows. The complainantinitiates it by completing a confidential form on the ADRprovider’s website. Then, a mediator contacts the respondent inorder for him/her to participate. If the other party agrees toparticipate, they can fill out their own form or respond to theinitial through email. This initial exchange of views may helpparties to understand the dispute better and possibly reach anagreement. If the dispute remains unresolved, the mediator willwork with the parties to help determine issues, articulateinterests, and evaluate potential solutions.17

In online mediation, websites have also provided onlinemediators with new tools to supplement email in addition withother communication tools including electronic conferencing,online chat, video-conferencing, facsimile and telephone.18

C. Online Arbitration:

Arbitration is the process where a neutral third party(arbitrator) delivers a decision which is final, and binding onboth parties. Online arbitration is no different from offlinearbitration except that it is a form of ADR that takes place onthe internet. Online arbitration which is also called cyber-arbitration, cybitration, cyberspace arbitration, virtualarbitration, or electronic arbitration has attracted the interest

16 Petrauskas F. and Kybartiene E. op.cit. p. 927.17 Manevy I, 2001, Online dispute resolution: What future? P.14. Available at http://ithoumyre.chez.com/uni/mem/17/odr01pdf. (Last visited on 14th December,2014). Also see Petrauskas F. and Kybartiene E., ibid. p. 927-928.18 Manevy I, 2001, ibid p. 14.

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of legal scholars since the middle of the nineties.19 Onlinearbitration is capable of resolving both online and offlinedisputes. Currently, most arbitration providers allow parties inoffline disputes to carry out online only part of the arbitrationprocess, for example, parties may download claim forms, thesubmission of documents through standard email or secure webinterface, the use of telephone hearings etc.20 Since this paperfocuses strictly on online arbitration, its process and reviewshall be discussed in details in Part II of this paper.

3. GROWTH AND EVOLUTION OF ODR:

Although the internet began in 1969, ODR did not emergeuntil the early 1990’s. For the first two decades, the internetwas used by a limited number of people in limited number ofways.21 Until 1992, the internet was largely used by the USdepartment of defense to ensure that its computer system willremain functional in event of any enemy attack, and commercialactivities were banned from using the net.22

In the latter part of the 90’s, some specialized disputeresolution techniques were created to attend to some onlineissues like flaming and violations of “netiquette”. Although thetechniques helped in dealing with the conflicts, there were noorganized dispute resolution institutions specifically set up. Atthat time, ODR had not been invented.23

As commercial activities on the net were allowed tocontinue, the rate of online disputes began to surface. This ledto the inception of ODR. The idea of ODR emerged out of thebelief that disputes would increase as online activities grew.19 Schultz, T. 2002. Online Arbitration: Binding or Non-Binding? (Interactive). ADR Online Monthly. UMASS. (Last visited on the 14th December, 2014).20 ibid21 Katsh E. 2006. Online Dispute Resolution: Some Implications for the Emergence of Law in Cyberspace. Lex Electronica vol. 10: No.3 p.3. Available at http://www.lex-electronica.org/articles/v10-3/katsh.htm (last visited on 14th December, 2014).22 Jay P. K. and Rajiv C.S. 2001. Fool us once shame on you – fool us twice shame on us. What we can learn from the privatizations of the internet backbone network and domain name system. Available on http://papers.ssm.com/sol3/papers.cfm?abstract_id=260834 (Last visited on 14th December, 2014.23 Rafal, M., 2005, op.cit. p.10

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This belief was true as companies who entered into commercialtransactions online began having one dispute or the other. Forexample, disputes arose on daily basis between trademark ownersand domain name holders and other intellectual property issues.24

The emergence of online disputes required urgent attentionand as such academics and non-profit organisations pressed forthe use of ODR to resolve most of these disputes. They beganexperimenting the efficacy of ODR in resolving online disputes.The first case study was through online mediation by the OnlineOmbuds office, an online project at the University ofMassachusetts where an online mediator helped an individualwebsite owner resolve a problem with a local newspaper claimingcopyright infringement. The success of this e-mediationexperiment gave a conviction that ODR will be suitable inresolving disputes in the cyberspace and will win the heart ofonline disputants due to its speed and convenience25

From 1999, commercial establishments began to show interestin online dispute resolution. It was at this point that ODR to alarge extent became accepted as the most suitable disputeresolution process in the cyberspace and it has been demonstratedto resolve both online and offline disputes.26

Currently, ODR thrives in the US and in several Europeancountries. It has been recognized by both governmental andcommercial institutions as the first choice for settlement ofdisputes arising from online activities.27

PART II: ODR PROCESS

1. ODR PROCEDURE: ONLINE ARBITRATION

As stated earlier, this paper shall discuss a typical ODRprocedure with our focal point on online arbitration. The24 Ibid p. 1025 See Centre for Information Technology and Dispute Resolution, Online Ombuds narrative 1: The Web Site Developer and the Newspaper. Available at http://www.ombuds.org/narrative1.html. (Last visited on 24th December, 2014).26 Rafal, M., 2005. op.cit p.1127 Ibid p.11

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procedure used in online arbitration is quite similar to offlinearbitration save for the fact that the former takes place on theinternet. One leading online arbitration entity is the “internet-ARBitration”.

In internet-ARBitration (net-ARB), parties can file theircases free of charge. It prides itself as a world leader in low-cost arbitration.28 Other thriving online arbitrationinstitutions are FINRA,29 onlineARBITRATION.net,30 and eQuibbly31.Typically, online arbitration providers resolve disputes relatingto e-commerce, domain issues, intellectual property matters andmoney claims. These online arbitration sites have qualified andindustry experienced arbitrators who can adequately resolve anykind of online dispute between parties.

In online arbitration, a party (also known as the claimant)who intends to resolve the dispute via online arbitration,initiates arbitration by filling a statement of claim with theODR provider specifying relevant facts and remedies requested.The claim is filed at the website of the chosen ODR provider.OnlineARBITRATION.net gives a condition precedent to the partyfiling the arbitration process to provide the telephone number,contact representative and email address of the adverse party andhis representative. Failure to meet this condition may result inthe case being dismissed or a decision vacated.32 Filing astatement of claim attracts a fee. Filing fees depends on the ODRprovider and also the nature of the claim.33 Where prior to thedispute, parties have agreed to resolve their disputes via onlinearbitration, the agreement shall also be submitted along with theclaim. Also documentary evidence may also be submitted. Thedocumentary evidence can be scanned and attached to a boxprovided by the ODR provider when initiating a claim. It can also

28 Internet-ARBitration: How net-Arbitration Works. Available on http://www.net-arb.com/how-arbitration_works.php (last visited on 20th December, 2014).29 http://www/finra.org. 30 http://www.onlinearbitration.net31 https://www.equibbly.com. 32 Section 1, Online ARBITRATION Process Rules. Available on www.onlinearbitration.net. 33 Parties initiating claims under net-ARB will file claims free of charge as filing fees under net-ARB has been completely eliminated.

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be sent via email.34 In onlineARBITRATION, the claim of theclaimant must be at least $5,000 (five thousand dollars).35

As soon as the claim is lodged at the website of the ODRprovider, the ODR provider then contacts the other party(respondent) with the e-mail address provided by the claimant,informing the respondent of the initiated claim and alsopersuading the respondent to consent to online arbitration. Oncethe respondent consents to online arbitration the respondent willthen respond to the arbitration claim by filing at the website ofthe ODR provider, an answer specifying the relevant facts andavailable defenses to the claim.36 Afterwards, both parties(claimant and respondent) shall select an arbitrator from thelist of potential arbitrators accredited by the ODR provider theyhave agreed to refer their disputes to. The names of thesearbitrators are displayed on the website of the chosen ODRprovider. The choice of arbitrators will be done by parties andcommunication as to choice of mediators will be done throughexchange of emails. Jabiri provided three modes on how onlinearbitration agreement can be concluded:37

a. Opposite parties announce their consent by referring theirdispute to arbitration by email.

b. Websites selling goods and services put an arbitrationclause in the ‘terms and conditions” section of theirwebsites. In this part consumers can declare their consentby clicking “I agree” or “I accept” button in a pop-up boxon computer screen.

c. The third mode is cited by the UNCITRAL Model Law, in whichparties in the cyberspace, refer their disputes to adocument containing arbitration clause.

34 Jaberi M.S., op.cit. p. 835 See Section 2-2 Online ARBITRATION Process Rules.36 FINRA: Arbitration Process. Available at www.finra.org/ArbitrationAndMediation/Arbitration/Process/ (last visited on 20th December, 2014). 37 Jaberi M.S., Online arbitration: A vehicle for dispute resolution in Electronic Commerce. p.4 Available on www.academic.edu/1842719/online_Arbitration_A_Vehicle_for_Dispute_Resolution_in_Electronic_Commerce (last visited on 26th December 2014)

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In net-ARB, once the other party (respondent) agrees toarbitrate, the claimant is notified immediately. Parties are sentdates set out for hearing as well as instructions for the hearingthereafter.38

During the hearing phase, all testimonies and evidence aregiven either by email or video conferencing depending on thechoice of the parties, arbitrators or ODR provider.39 Use of thevideo-conferencing is the most common method in onlinearbitration. By this device (video-conference), not only partiescan be heard and seen easily but also testimonies of witnessescan be taken.40 It is important to state that the technology ofvideo-conference is not only used in online arbitration or any ofthe ODR mechanism. Both litigation has subscribed to video-conference. For instance the rules of civil procedure in England,Wales, and the US, allow for the use of video-conference duringhearing under certain circumstances.41

Once hearing (i.e. giving of testimony and evidence) closes,the arbitrator(s) will close the hearing. The arbitrator(s) willthen review all of the evidence and issue a written bindingdecision (called an “Award”). The award explains the arbitrator’sreason for deciding the case the way they did. Where partieschoose an arbitration panel, the majority of the panel must agreeon the outcome.42 The award will be communicated to the partiesinvolved via email and/or posting it to the website of the ODRprovider.43 Time limits for awards range between 4 hours to 30

38 Internet-ARBitration: How net-ARBitration Works. op.cit.39 Net-ARB recommends evidence and testimony to be given via email.40 Jaberi M.S., op. cit, p. 1041 See Civil Procedure Rules Part 36, Rule 32.3 or PD 23 by leave of the court, or the US Federal Rules of Civil procedure: Fed. R Civ. P. 43(a), “The court may for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. Also see Hornle J, 2003; Online Dispute Resolution – The Emperor’s New clothes? Benefits and pitfalls of online Dispute Resolution and its Application to commercial Arbitration. International Review of Law 17(1)p.4.42 Internet – ARBitration: How net-ARBitration Works op.cit.43 Schultz T., Kaufmann-Kohler G., Langer D., Bannet Y., 2001, Online Dispute Resolution: The state of the art and the issues. Available at http://ssrn.com/abstract-899079 (last visited on 20th December, 2014).

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days. For instance awards made by the Arbitration Court shall bemade available to parties on the institution’s website for aperiod of 30 days from the date upon which the arbitral award wassubmitted.44 ICC (International Chamber of Commerce) in additionto the publication of the award on the website of the case athand within 60 days, makes a hard copy of the electronic awardavailable to parties for more security.45

2. BENEFITS OF ODR

ODR confers a number of benefits to online users. Most ofthese benefits relate to the benefits commonly associated withthe traditional ADR. However, there are additional benefits toresolving disputes over the internet. This paper shall discussthe various benefits of ODR below:

i. Convenience

One of the most significant benefit of ODR is that ispermits communication at a distance thus eliminating the need fortraveling and substantially reducing cost. Unlike traditional ADRwhere parties will have to commute over long distances to resolvetheir disputes, in ODR, parties can resolve their disputes in thecomfort of their homes. All that is needed is a computer that isinternet enabled. Once this is available, disputes can beresolved immediately. In Pappas view, ODR is faster than atypical trial or even ADR because technology can shorten thedistances parties might otherwise need to travel.46 Anotherfactor showing that ODR is convenient is that websites of someODR providers are available twenty four hours a day and sevendays a week. Most of these websites work around the clock and soonce disputes arise, parties can resolve their issues immediately

44 Section 13 ARBITRATION COURT: Additional procedures for online arbitration (on-line Rules). Available at en.soud.cz/rules/additional-procedures-for-on-line-arbitration-1st-june-2004 (last visited on 26th December, 2014). 45 Jaberi M.S. op.cit. p.546 Pappas B.A, 2008, Online Court: Online Dispute Resolution and The Future of Small Claims. UCLA Journal of Law and Technology Volume 12, issue 2. p.6 Available at www.lawtechjournal.com (last visited on 14th December, 2014).

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without having to wait for weeks or months before their case goesto trial.47

Also important under convenience is that parties can at thecomfort of their homes choose a neutral to aid them in resolvingtheir disputes. Currently, most ODR providers have in theirwebsites list of neutrals (either mediators or arbitrators).Parties involved in the process can choose a neutral by simplyprofiling the neutrals and selecting the one that is suitable inresolving their disputes.

ii. Low Cost

Litigation can be very expensive. Similarly, internationalcommercial arbitration is expensive and is not particularly aspeedy procedure although it is cheaper than litigation. ODR onthe other hand may lead to reduced costs. In many instances,parties engaging in ODR will not have to brief a lawyer at all.48

This benefit makes ODR more attractive than traditional ADR. Intraditional ADR parties bear all costs. In addition to theirtravel expenses, parties pay the fees and travel cost of thelawyers and arbitrators. They also incur cost of renting roomsfor hearing and deliberation of the award, and the travel costsfor any third party involved in the proceedings as an expert oras a witness.49 With ODR, parties incur very little and at thesame time obtain a satisfactory settlement. The mere fact thatparties, lawyers, and arbitrators can participate from whereverthey are, eliminates travel and related costs.

iii. Encouraging International Trade

ODR especially arbitration aids international trade byeliminating the geographic obstacles to justice. Email discardsthe extremely cumbersome need for in-person meeting and constantbattling with time zone restrictions.50

47 Hang L.Q., 2001, Online Dispute Resolution Systems: The Future of Cyberspace Law; Santa Clara law Review, vol. 41: No.31 Article 4, p.354-355. Available at http://digitalcommons.law.scu.edu/lawreveiw/vol41/iss3/4 (last visited on 14thDecember, 2014.48 Hang L.Q, 2001, Ibid. p. 85549 Biukovic, L., 2002, op.cit. p. 340.

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iv. Speedy Outcome

ODR provides quick results. In most cases, the whole processcan be completed within just a few days after both sides sign theAgreement to Arbitrate.51

PART III: MATTERS ARISING

1. EMERGING ISSUES ON ODR:

Despite the benefits of ODR, critics have pointed to anumber of challenges and limitation. According to them althoughODR is faster, convenient, flexible and voluntary, severalhitches in the process have questioned the claim that ODR is asuitable alternative to litigation or traditional ADR. We shalldiscuss a number of these challenges below:

a. LACK OF FACE TO FACE ENCOUNTER:

Critiques of ODR have argued that ODR offers no face to facecontact.52 Eisen has argued that ODR (especially mediation andarbitration) through e-mail loses the dynamics of traditionalADR.53 Other authors have opined that the essence of face to faceencounter in ADR especially via mediation is that parties areable to vent their feelings and emotions in a more formal settingsuch as a court room and they are able to look directly in theface of the other party and feel the grievance and loss suffered.This would be very difficult to obtain when parties communicatevia computer screens.54 In the view of Katsh, there is richnessin face to face meetings because interaction can occur quicklyand spontaneously and often on a non-verbal level.55 According to50 Internet-ARBitration: “Benefits of Online Arbitration”. Available on www.net-arb.com/arbitration_articles/article.php (last visited on 20th December, 2014).51 ibid.52 Hang L.Q, 2001, op.cit. 85753 Eisen J.B., 1998, Are we ready for mediation in cyberspace? BYU L. Rev. 1350, p. 1312-13.54 Katsh, E., 2000,. The new Frontier: Online ADR becoming a global priority, Dispute Resolution Magazine, p.8 available at www.umass.edu/cyber/katsh_aba.pdf (last visited on 14th December, 2014).55 Hornle J., 2003, op.cit. p. 3

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Hornle, lack of face to face encounter makes it harder for themediator to establish parties’ trust and confidence in theprocedure.56 Manvey has also submitted that without face to faceencounter (F2F), the parties may not be satisfied with anysettlement that is concluded, regardless of the speed andefficiency of the process.57

Despite the challenges of face to face encounter posed byODR, proponents of ODR have come up with solution to the loss ofthe face to face contact. One suitable solution to this challengeis the use of video communication through the internet. This ismade possible through the video conference device. According toManvey, ‘face to face’ communication is replaced by powerful“screen to screen” communication. This however requires mediatorsto adopt their communication skills from face to face interactionto screen to screen interaction.58 Currently, video-conferencingis the preferred technology in ODR. It is almost the same withface to face encounter as parties can see themselves, takeevidence and reach agreement as though it were a face to facearrangement.

B. ISSUES OF CONFIDENTIALITY AND SECURITY

Another major challenge facing ODR is the protection ofsensitive materials. Several authors have questioned the abilityof ODR to keep confidential parties deliberations and decisions.The major questions posed are “How can one be sure that the datasent and received will not be tampered with and how can one besure that no unauthorized third party will have access to theinformation?” One important feature of ADR is “confidentiality”and so once a process shows a high level of confidentiality, afeeling of trust among the parties is sure. Katsh has opined thatprotecting trust and the discussion process in ADR is veryimportant because parties are more likely to speak freely whenthey can be sure that their words will not come back to be heldagainst them.59 Thus, if one party does not fully trust the other

56 Manvey I., 2001, op. cit. p. 3157 Ibid. p. 858 Ibid. p. 859 Katsh E., 1995 Dispute Resolution in Cyberspace, 28 CONN. L. REV. p. 971

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party, the ADR process is in jeopardy.60 The issue of insecurityin ODR is a serious one. There is no guarantee that documents andinformation can be kept confidential as someone (internethackers) could easily break in to databases of websites, printout and distribute, for example, e-mail communication withouttheir knowledge and consent. According to Jaberi, lack ofsecurity not only weakens the confidentiality which is one of themain principles of ADR, but also makes people reluctant in usingODR to resolve their disputes.61 However, to overcome thisproblem, some security measures have been implemented. One ofsuch is the digital signature.62 The digital signature plays animportant role in ensuring the authenticity, integrity and non-repudiation of data communication thus enhancing trust. It is anauthentication method that uses public-key cryptography.63

Various countries have enacted a law validating digitalsignature, thus giving it the same status of a pen and paperdocument. One of such countries is the United States of America.In 2001, President Clinton signed into law the “ElectronicSignatures in Global and National Commerce Act”. The Act gives asignature or record sent through the cyberspace the same legalvalidity as a written document.64

Also, to ensure that issue of insecurity of databases on thecyberspace is addressed, several countries have enacted lawscriminalizing and prohibiting hacking of databases. For instancein the US, the Digital Millennium Copyright Act (DMCA) was passedinto law in 1998. The Act prohibits the circumvention of60 Hang L. Q., 2001, op. cit. p. 85961 Jaberi M.S., op. cit. p. 1262 A digital signature takes the concept of traditional paper-based signing and turns it into an electronic “finger print”. This finger print or coded message is unique to both the document and the signer and binds them together.Digital signatures ensure the authenticity of the signer. Any change made to the document after it has been signed invalidates the signature, thereby protecting against signature forgery and information tampering.63 The public-key cryptography consists of two keys. Private and public keys which is used to secure data communication. A message sender uses the recipient’s public key to encrypt a message, to decrypt the sender’s message, only the recipient’s private key may be used.64 Available at http://www.njleg.state.ng.us/2000/Bills/Plo1/116_.PDF (last visited on 20th December, 2014).

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technological protection measures undertaken by owners ofdatabases. This means that anyone caught circumventing a databasewithout authorization from the owners will be punished inaccordance with the Act. With these laws in place, issues ofinsecurity in the cyberspace are minimized and trust for the ODRprocess alive. Sadly, Nigeria is still yet to have a lawprohibiting circumvention of technological prevention measurework65.

Another useful technique especially for online arbitration is the“electronic file management” software. This is used for complex, large-scale arbitration. The software was invented as an alternative toemail since emails cannot guarantee adequate security for onlinedispute resolution. The electronic file management means that alldocuments pertaining to the case in question are storedelectronically in a systematic order. Electronic file managementsoftware permits individual documents or passages to be easilyretrieved, displayed or printed, cross-referenced, compared,annoted and searched for keywords. Electronic file management iswidely used in practice as it is more secured.66

C. PROBLEMS WITH E-ARBITRATION AGREEMENTS

Basically in traditional arbitration, an arbitrationagreement is a written contract in which two or more partiesagree to settle a dispute outside court via arbitration. Thearbitration agreement is ordinarily a clause in a largercontract. Thus, by signing an arbitration agreement, a party issimply agreeing to arbitration in the case of any futuredispute.67 This definition is not different from e-arbitrationagreement. The only thing that separates e-arbitration agreementfrom traditional arbitration agreement is that a party agrees on-line to resolve disputes via online arbitration. This is simplydone in most cases by clicking either “I agree” or “I accept”

65 There is currently a proposed legislation for amendment of the Copyright Act called “Copyright Act (Amendment) Bill, SB 03”. The bill includes provisions prohibiting circumvention of technological measure works. 66 Honrle, J. 2003. Op.cit p.467 Free-Advice: What is an arbitration agreement? Available at http://law.freeadvice.com/litigation/arbitration/agreement_arbitration.htm. (Last visited on 20th December, 2014).

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while filling a consumer agreement form online68. Anotherdifference is that while the traditional arbitration agreement isin writing and is signed by parties, e-arbitration is done viainternet and so there is no form of writing but a show of consentmade possible by simply indicating “I accept” or “I agree”. Thisform has raised so many queries as to the validity of this formof agreement. The questions posed is that since the UnitedNations Convention on the Recognition and Enforcement of ForeignArbitral Awards also known as New York Convention gives a strictrequirement that an agreement be in writing for it to be valid,Can an arbitration agreement made online be considered to be inwriting? Can it be said to be valid in line with the provisionsof the New York Convention? The convention in Article 2 providesthat:69

“Each contracting state shall recognize an agreement in writing under which the partiesundertake to submit to arbitration all or any differences which may have arisen orwhich may arise between them in respect of a defined legal relationship”.

The second part of Article 2 further holds that:

“the term’ agreement in writing’ shall include an arbitral clause in a contract or anarbitration agreement signed by the parties of contained in an exchange of letters ortelegrams”.

The obvious conclusion here is that the New York Convention hasnot included electronic form as a method of concluding anarbitration contract.

Many authors have argued that the Convention is an outdateddocument which did not foresee unprecedented development of hightechnology such as the internet as a means of communication. As aresult of this, calls have been made for the modernization of theConvention.70 In an attempt to make the provisions of the NewYork Convention in line with the emergence of technology, Hill

68 Jaberi M.S., op.cit p4. 69 Article II New York Convention 1958. Available at http://www.arbitration-icca.org/media/0/12125884227980/new-york_convention_of_1958_overview.pdf (lastvisited on 20th December, 2014).70 Biukovic L., 2002, op.cit. p. 345-347.

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has argued that since the Convention made mention of fax andtelegram, email has the same credibility as a fax or telegram.71

Interestingly, the United Nations Commission onInternational Trade Law (UNCITRAL) Model Law on ElectronicCommerce 1996 has resolved this challenge. By virtue of Article6.1 of the UNCITRAL Model Law on Electronic Commerce, an e-arbitration agreement has the same status as the traditionalarbitration agreement and thus becomes valid.72

As the UNCITRAL made rules to make e-signatures73 and e-documents equivalent to paper ones, several countries havefollowed suit by enacting laws on electronic commerce. Forinstance, in 1999, US enacted the Uniform Electronic transactionAct (UETA) 199974 for e-commerce and the Electronic Signature inGlobal and National Commerce Act in 200075 to take care ofelectronic signatures. Also, Australia enacted the Electronic(Amendment) Act (ETA) 2011 to take care of e-commerce.76 NewZealand in 2002 also passed into law the Electronic TransactionAct.77 Malaysia followed suit by passing into law the ElectronicCommerce Act of 200678 to take care of electronic messages incommercial transactions and Malaysia Digital Signature Act of

71 Hill R., 1999, Online Arbitration: issues and solutions .15 ARB. Int’l . Available at http://www.umass.edu/dispute/hill.htm (last visited on 20th December, 2014).72 Article 6(1) of the UNCITRAL Model Law on Electronic Commerce provides: “where the law requires information to be in writing, that requirement is met by a data message if the information contained therein is accessible so as to be usable for subsequent reference”.73 Article 7 of UNCITRAL Model Law on Electronic Commerce makes e-signatures equivalent to a hand written signature and admissible as evidence in legal proceedings.74 Available at http://www.njleg.state.ng.us/2000/Bills/Plo1/116_.PDF (last visited on 20th December, 2014).75 Available at https://www.fdic.gov/regulations/compliance/manual/pdf/x-3.1.pdf (last visited on 20th December, 2014).76 http://www.comlaw./gov.au/Details/C2011A00033 (last visited on 20th December, 2014).77 Available at http://www.legislation.govt.nz/act/public/2002/0035/latest/whole.html (last visited on 20th December, 2014).78 Available at http:/www/commonlii.org/my/legis/consol_act/eca2006182/longtitle.html (last visited on 20th December, 2014).

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1997 to take care of e-signature.79 Nigeria currently has no lawon e-commerce or e-signature. However there is a proposedlegislation before the Nigerian National Assembly. This bill isknown as “Electronic Commerce (Provision of Legal RecognitionBill 2011).80 Notwithstanding the fact that there is nolegislation on e-signature in Nigeria, e-signature has beenrecognized in Nigeria. This recognition is accorded by virtue ofthe Evidence Act 2011 where e-signature falls into the categoryof computer documents which by virtue of Section 84 of theNigerian Evidence Act 2011 is admissible in evidence.81 The Actdescribes a document in Section 258 (1) (d) of the Evidence Actto include “any device by means of which information is recorded, stored orretrievable including computer output”. A computer is in turn described tobe “any device for storing and processing information and any reference toinformation being derived from other information is a reference to its being derivedfrom it by calculation, comparison or any other process”. Furthermore, Section86 (3) (d) of the Evidence Act provides that where a number ofdocuments have all been produced by one uniform process as in thecase of printing, lithography, photography, computer or otherelectronic or mechanical process, each of such documents shall bethe primary evidence of the contents of all the documents soproduced by this one uniform process. Thus, since electronicsignature is made by electronic process, it qualifies as acomputer document meaning that it can safely be recognized andaccepted in Nigeria as similar to paper documents.

D. PROBLEMS WITH ENFORCEMENT OF E-ARBITRAL AWARDS

In traditional arbitration, an arbitral award refers to adecision made by an arbitration tribunal in an arbitrationproceeding. An arbitral award is similar to a judgment in a courtof law.82 This definition is similar to electronic arbitralawards save for the fact that in e-arbitral awards, the award is

79 Digital Signature Act 1997 (ACT 562). Available at http://www.skmm.gov.my/legal/Acts/DIGITAL-SIGNATURE-ACT-1997-REPRINT-2002.aspx(last visited on 20th December, 2014).80 The Nigerian Electronic Commerce Bill 2011 is a replica of the Electronic Commerce Act of Malaysia 2006.81 See Evidence Act 2011.

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given online (i.e. via electronic means or via the internet). Intraditional arbitration, once an award is given, the next step isto enforce the arbitral award. However, an issue lies as to theform of an e-arbitral award. Article 2 of the New York Conventionprovides that:

“To obtain recognition and enforcement, the applicant party shall, at the time of theapplication, supply duly authenticated originals or duly certified copies of the awardand the arbitration agreement”.

This simply means that if the original award is not produced, thesuccessful party in the arbitration will not be able to invokethe New York Convention System.83 The question now is “How canthis requirement of authenticity and originality be reconciledwith the online award?” As suggested by authors, a likelysolution to this challenge will be to read Article 4 togetherwith Article 3 of the New York Convention which provides that“the contracting state shall recognize and enforce arbitral awards in accordance withthe procedural laws of the territory where the award is relied upon.” This simplymeans that if the state of accepts an electronic form of writingthere should be no barrier to the enforcement of the electronicaward.84

E. APPLICABLE LAW AND ARBITRATION SEAT

In simple words, the seat of arbitration means place orvenue of arbitration. On the other hand, applicable law is thelaw governing the arbitration. Over the years, there have beendifficulties in determining a seat of online arbitration and theapplicable law in online arbitration. As regards seat of onlinearbitration, a solution to this is that parties can in theiragreement determine the seat of arbitration. According to Article20(1) of the Model Law on Arbitration, parties are free to choosethe seat of arbitration. Where they fail to reach an agreement as82 USLEGAL: Arbitral Award Law and Legal Definition. Available at http://definitions.uslegal.com/a/arbitral-award/ (last visited on 20th December, 2014).83 Jaberi M.S., op. cit. p. 1784 Herboczkova J., Certain aspects of online arbitration. Journal of American Arbitration, vol. 1, No.1. available at http://www.law.muni.cz/sborniky/dp08/files/mezinaro/herboczkova.pdf (last visited on 20th December, 2014).

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to choice of seat of arbitration, the seat of arbitration shallbe determined by the arbitral tribunal85

The solution to the problem of applicable law in onlinearbitration is similar to that of place of arbitration. Whatworks under here is the principle of party autonomy. By theprinciple of party autonomy, the parties are free to choose thelaw applicable to the substance of their dispute. It is only whenthey fail to make a choice that the arbitration panel can nowchoose the applicable law. This is virtually the same withinternational commercial arbitration. In Biukovic’s view,international commercial arbitration gives parties theopportunity to shop around for the most favourable law.86 Sinceonline arbitration is also by its nature an aspect ofinternational commercial arbitration, it will be safe to adoptthe view of Biukovic to online dispute resolution.

F. CULTURE AND LANGUAGE BARRIER

Being a unique creation of technology, the internet commandsinteraction between different ethnic groups and race. This is thesame when it comes to commercial transactions on the internet.Since dispute arising out of e-commerce transactions areinevitable, there comes a challenge with respect to language andculture especially when the dispute is between partiesoriginating from different cultural backgrounds. For instance,some expressions or idioms may not translate correctly from oneparty in one country to same in another. According to Helie J.“somebody may dash of quickly an email message without thinking but recipient cantake the message very seriously. This can create misunderstanding and even full blownarguments”.87 One solution to this challenge is the use ofprofessional translators and interpreters to assist incommunication. The job of the interpreter and translator issimply to convert information from one language to another.Another technology used to aid communication here is the use ofthe “Communication Access Real-time Translation (CART). The CART is a85 Please note that seat of arbitration is also called place or venue of arbitration.86 Biukovic L., 2002, op.cit. p. 33387 Helie, J. Technology creates opportunities and risks. Cited from Petrauskas, F. and Kybartiene, E., 2011, op.cit. p. 936.

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“speech-to-text” device that has emerged in the past decade. Withthe assistance of this device, spoken words are transcribed intotext, either by a live person or by a computer program.88

However, writers have criticized this device as been unable toprovide accurate translation and contextual interpretation,meaning messages can easily be misunderstood. Any peripherynoise, secondary speakers, or unusual inflections can easily leadto confusion. Thus, human interpreters and translators have beenrecommended as the most suitable.89

2. BASIC CONDITIONS FOR A SUCCESSFUL ODR:

a. CREATION OF ODR TRUST AND AWARENESS

Trust and awareness are both important aspects for asuccessful ODR. In order for ODR to become successful, it mustmeet certain basic conditions. ODR must create adequateawareness. By this I mean that ODR should establish its presencein the cyberspace communities. For instance, ODR can let peopleknow about its efficacy in resolving disputes by advertisingthrough search engines, legal websites, and through deals withbig name business.90 For instance, an ODR provider in Nigeria cancreate awareness by advertising its services either on Konga orJumia. Since so many Nigerians transact business on these sites,they will be informed of the existence of a mechanism that canresolve disputes online. Also while creating awareness, it isimportant to assure online users of confidence in the reliabilityof ODR which might have a huge impact on its legitimacy.According to Thomas Schultz,”ODR needs architecture of confidence, somethingthat will create tangible features, social contexts and predictable remedies in case aproblem occurs.”91 In order to successfully establish trust, among88 L.C. Interpreting Services: Can Digital Devices Replace devices-replace-interpreters. Available at http://signlanguagenyc.com/can-digital-devices-replace-interpreters/ (last visited on 21st December, 2014).89 Ibid.90 Hang, L.Q, 2001, op. cit. p. 862-863.91 Schultz, T. 2004. Does Online Dispute Resolution Need Governmental Intervention? The case forArchitectures of Control and Trust. North Carolina Journal of Law x Technology, vol. 6,p. 71, 73. Available at http://ssrn.com/abstract=896532 (last visited on 21st December, 2014).

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users, the ODR provider should establish mechanisms to preventunwanted persons from gaining access into vital information ofparties. This will be achieved by subscribing to technologicalprotection measures which makes it difficult for hackers topenetrate into the database of the ADR provider. Also, the ODRprovider must provide information about mediators andarbitrators, and thoroughly explain the process of online ADR.92

b. APPROPRIATE TRAINING OF ARBITRATORS AND MEDIATORS

Another vital condition for a successful ODR is theexistence of well trained and experienced neutrals. Asides beingknowledgeable on ADR, it is important that neutrals acquireproper training on how to use the internet and ODR mechanisms.Jaberi has assumed that proper education for all persons whorelate to online arbitration such as arbitrators, attorneys andeven judges on law and information on technology can reduce thelimitations/problems of ODR.93 Therefore, it is recommended thatneutrals be well trained in the use of ODR softwares and devices.Additionally, it is equally important that parties be educated onhow to use ODR softwares and devices as this will enhance theentire process.

c. ACCESSIBILITY

Accessibility to computer and internet is yet anotherimportant issue. Access to computer and the internet is limited.This problem is worse in countries like Nigeria where the numberof computer literates is appalling. It is therefore necessary tomake internet accessible especially for those involved indisputes arising from such transactions. ADR providers canachieve this by making its ODR processes easy to understand anduse.

CONCLUSION

The concept of ODR in the cyberspace is indeed a welcomedinnovation especially for online users and those involved in e-

92 Hang, L.Q., 2001, op.cit. p. 862.93 Jaberi, M.S. op.cit. p. 12

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commerce. With technology, disputes can be resolved instantlyand in the comfort of one's home thus, oblivating the need totravel and/or incur expenses which would ordinarily have beenincurred during litigation or traditional ADR. Although severalchallenges and limitations of the process exist, there have beenquick responses and solutions to ensure that the processcontinues to thrive.

However, there is room for improvement. The impact of ODR can befelt through the satisfaction of basic conditions such asaccessibility, appropriate training of neutrals and parties andcreations of trust and awareness. The end point is to introduceODR as a potent tool that brings alternative dispute resolutionto the door step of online users and those involved in e-commerce.

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