[Ecommerce] More on ADR

[Marc Rotenberg]

I suspect the recent experiences with dispute resolution in the
privacy world would provide some helpful insight into the larger
issues associated with ADR. We have found, for example, that it is
almost impossible for consumers to obtain any actual redress
(monetary or otherwise) when complaints are brought to a
third-party, non-governmental business association. EPIC will
release a report evaluating these programs early next year.

Another useful area to consider is the treatment of domain name
disputes under the ICANN UDRP. Milton Mueller produced a good report
on this topic for the ACM. That study found that the system is
biased in favor of trademark holders since it allows them to choose
the arbitration organization that will decide the dispute.
http://www.acm.org/usacm/IG/roughjustice.pdf

I also agree with Pippa's point that we should consider carefully
whether "ADR" provides the right conceptual staring point to
safeguard consumer interests. Dispute resolution means something
very different to a manufacturer at odds with a supplier than it
does to a consumer dealing with a merchant.

Regards,

Marc Rotenberg




At 3:05 PM -0500 12/22/00, James Love wrote:
>Subject: Re: [Ecommerce] Re: Pippa's message, formatting fixed
>   Date: Fri, 22 Dec 2000 13:40:29 -0500
>   From: Pippa Lawson <pippa@web.ca>
>     To:  James Love <love@cptech.org>
>
>Thanks, Jamie.  In response:
>
>At 12:53 PM 12/22/00 -0500, you wrote:
> >Pippa wrote:
> > > Are there any clear (written) proposals for incorporating ADR into the
> > > Hague Convention? I have not seen any yet, despite a lot of vague talk
> > > about it. I find it difficult to discuss this issue without 
>having a clear
> > > proposal on the table.
> >
> >    Well, good luck getting the GBDe and the various proponents of this
> >(including people in various government delegations) to put their cards
> >on the table.  We have had endless meetings about ADR, without any
> >context or explanation as to why governments are so worried about how
> >these big companies can keep their consumers happy.  In Basel, there
> >was, apparently, a paper that had mentions of ADR, but again, to very
> >specific as to the Convention.  Manon can provide some details of
> >this.    That said, it should be obvious what is going on... much of
> >which was outlined in the 1999 ecommerce meeting held in Geneva, which
> >is on the Hague Conference web page, and linked to our Hague convention
> >web page.  It's about a "safeharbor" type approach on ecommerce and
> >privacy, and maybe IPR.... business wants it run by the private sector.
> >The various business groups have made countless presentations
> >recommending this over the past couple of years.
>
>Pippa:
>I know, but it doesn't make sense to me in the context of the Hague
>Convention, and I don't think the thinking around it is clear.  The idea
>seems to be: if a business uses an [approved] ADR service, the consumer
>cannot then take advantage of the rule making the consumer's jurisdiction
>applicable in a cross-border court dispute.  I don't see how this serves
>the goal of consumer confidence in ecommerce or, for that matter, the
>desire to steer consumers into ADR rather than court.  The GBDe has already
>agreed that consumers should not be deprived of their rights to sue as a
>result of ADR clauses in sales contracts, so they can't be suggesting that.
>
>
>
> > > The Hague Convention is about last resort, when the consumer can't obtain
> > > redress directly from the merchant or via some other easier 
>avenue such as
> > > ADR.
> >
> >     The Hague Convention is about jurisdiction and private judgements.
> >In what sense is this about "last resorts"?  In the sense that
> >litigation isn't the first thing one thinks about?
>
>Pippa:
>Yes.  It is expected that consumers will first try to get redress from the
>merchant directly, then try online ADR, and only resort to court if all
>else fails.  At one level, this is just a matter of practicality, but there
>could also be a legal requirement to exhaust all other avenues of redress
>before resorting to court.
>
> >     [snip]
> >
> > > With respect to models of governance for ADR, there is, I think, more to
> > > discuss. CI is recommending international standards for B2C ADR 
>so that we
> > > can identify and weed out the inadequate services, while encouraging the
> > > development of truly effective ADR services for consumers.
> >
> >    Ok, who sets the standards?  Isn't this the interesting issue?
>
>Pippa:
>Yes, this is something that needs to be discussed.  The only two forums
>that CI could identify were ISO and the OECD, neither of which are
>particularly appealing to consumer reps given their industry
>domination.  But on the other hand, these organizations exist, are
>internationally recognized as standards-setters, and CAN use standards
>development processes that involve balanced representation from all
>stakeholders.  Hence, CI's recommendation is that we move forward with one
>of these organizations, insisting from the outset on full involvement of
>consumer reps in the process.
>
> > >CI is also
> > > calling for an effective oversight regime of some sort, to ensure that
> > > online ADR services being used by businesses comply with these standards,
> > > and to coordinate among the many ADR services so that consumers can find
> > > the appropriate form of ADR for their particular complaint. 
>Such standards
> > > and oversight are needed regardless of the outcome of the Hague 
>Convention
> > > negotiations. [NB: For those who haven't seen it, CI's report on dispute
> > > resolution for consumers in cross-border ecommerce disputes is now
> > > available - see http://www.consumersinternational.org]
> >
> >       Ok.  Who does CI want to provide the oversight?  Exactly what
> >organization represents global consumers in these matters?  Forget out
> >the lack of transparency on the other side.  What the hell do we want?
>
>Pippa:
>Good questions.  CI could not at this stage identify an obvious body to
>fulfil the oversight role (other than governments).  That question was left
>open.  But clearly some kind of compliance assessment will be needed, as it
>is with all standards.  I don't know enough about ISO to know if it has any
>capacity in this regard.  An interesting model emerging in Europe (EEJ-NET)
>involves a network of domestic government sponsored "ADR clearinghouses",
>who assist consumers with complaints and who direct consumers to the
>appropriate ADR body.  This fulfils the coordination role, but not
>necessarily the compliance assessment role.
>
>We need something that:
>- sets out clear criteria for effective B2C ADR;
>- assesses whether or not any given ADR service meets these criteria;
>- makes such assessments readily available to the public;
>- steers consumers and businesses toward compliant ADR services and away
>from non-compliant services;
>- makes it easy for consumers to assess and choose among the various ADR
>options available to them
>- helps businesses and consumers find the right ADR service for the
>particular dispute; and
>- helps consumers obtain redress against businesses who do not comply with
>binding ADR results.
>
>
> > > Before agreeing to participate in such a meeting, I would insist that
> > > proposals be put on the table so that we know what we are talking about.
> >
> >     Well, lets see, the USG has a brand new President.  The EU hasn't
> >laid its cards on the table completely, and have others either?  So your
> >suggestion is what?  That we refuse to have any voice in this?  We just
> >let the GBDe pount away, and we sit it out and complain that no one
> >tells us anything?
>
>Pippa:
>I would simply ask that proposals in writing be tabled in advance of the
>meeting.  Maybe "insist" is too strong,.  I'm not disagreeing that we
>should participate in this, just saying that it's time for business to tell
>us what exactly it is that they are envisaging.  What exactly would be the
>focus of the discussions?  I think this is an entirely reasonable request.
>
>
> > > One consideration re: participants is that we (consumer groups generally)
> > > will want to have as strong a presence as possible at the actual Hague
> > > Convention negotiations, which as I understand it will be in 
>Ottawa (again)
> > > in late February. It would be sensible for those involved in the Hague
> > > Convention talks to participate in the FTC advance session, and 
>vice versa.
> > > Last time, Ursula was basically on her own (I was on the Canadian
> > > delegation, hence unable to be as vocal).
> >
> >         In the last Ottawa meeting, I thought that you were representing
> >CPT.  Did I miss something?
>
>Pippa:
>I tabled the CPT paper on your behalf, and spoke to US reps about CPT's
>concerns with the process.  I was part of the Canadian delegation, and
>couldn't play two active roles at once.
>
> > >We need to have a stronger
> > > consumer presence at the next Hague Convention meeting. Who else is
> > > planning to attend either via a national delegation or an independent
> > > consumer delegation? Regarding the latter, what has been agreed to by the
> > > Hague Conference (or who is working on it)?
> >
> >    Which meeting?  There are lots and lots of meeting now.  There was
> >just the meetings at the Hague and Basel, next is WIPO in Geneva on
> >January 30, then Ottawa, a meeting in Scotland, the FTC meeting,
> >anything we can organize by ourselves on IPR........
>
>Pippa:
>Should have said "meetings".  Note that there are specific Hague Convention
>meetings (Basel, Ottawa, etc.), vs. other more general ecommerce meetings
>in which Hague Convention issues will be raised (The Hague, FTC,
>etc.).  I'm talking about the former - actual negotiations on the text of
>the Convention.
>
> >    Were people kept out of the last Ottawa meeting, or did they just not
> >go?
>
>Pippa:
>I'm wondering the same.
>
>
> >    I was refussed a place in the Hague ADR meeting on the UDRP panel, by
> >the OECD.  I was accepted by WIPO for an IPR panel (the Jan Geneva
> >meeting), and so far I have not be accepted in the Ottawa meeting.
> >Manon is on the USG delegation in the government meetings, but in the
> >last two government meetings, Washington, DC or Basel, there were no
> >other consumer reps on any of the other country delegations, including
> >the Canadian delegation, which had, I believe, people from the private
> >sector.
>
>Pippa:
>That reflects my understanding.  I have only attended one Hague Convention
>meeting so far - the one in Ottawa last year.
>
>
> > > Also, a number of us participated in the 2 day OECD/ICC/Hague Conference
> > > workshop on ADR for B2C ecommerce disputes in The Hague a couple of weeks
> > > ago. I'm expecting the OECD to post some kind of meeting 
>results/notes. In
> > > any case, though, it would be useful to for those involved in the Feb.6th
> > > meeting to be aware of what was discussed in that forum.
> >
> >    Yes, those notes would be useful, for everyone.
> >
> > > As Louise Sylvan has pointed out, one realization that dawned 
>on some of us
> > > during that session was that we are to some extent talking at
> > > cross-purposes with our business colleagues. In particular, business and
> > > many ADR reps are thinking in terms of relatively balanced "disputes"
> > > between two parties, whereas consumer reps see the problem more 
>in terms of
> > > legitimate consumer complaints and the need for consumer redress. The
> > > former are well suited to typical ADR, but the latter are not necessarily
> > > amenable to mediation or other forms of ADR that require 
>compromise on the
> > > part of the consumer. In particular, where consumer rights are at stake,
> > > what is needed is adjudication, not negotiation. By using the term
> > > "dispute" rather than focusing on "consumer redress", we may be 
>unwittingly
> > > accepting a distorted characterization of the underlying problem.
> >
> >     I wasn't in the Hague meeting, but really, is there any question but
> >that the business community wants a simplified global set of rules that
> >it controls, as an alternative to dealing with national laws on consumer
> >protection and privacy?  This is really about deregulation and control
> >of norm setting and enforcement, it seems to me.
>
>Pippa:
>No disagreement from this quarter.   But I'm not sure what you are getting
>at.  What exactly does CPT want out of all of this?  How should the Hague
>Convention be drafted in your view? Do you disagree with any of CI's
>conclusions/recommendations on online ADR?
>_______________________________________________
>Ecommerce mailing list
>Ecommerce@lists.essential.org
>http://lists.essential.org/mailman/listinfo/ecommerce