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The Internet and Dispute Resolution: Untangling the Web - Product Image

The Internet and Dispute Resolution: Untangling the Web

  • ID: 2131606
  • October 2014
  • Region: United States
  • 700 Pages
  • ALM Media, LLC

The explosive growth of alternative dispute resolution and e-commerce has led to an innovative hybrid—Online Dispute Resolution (ODR). The Internet and Dispute Resolution: Untangling the Web shows you how ODR works and how it is already transforming dispute resolution in both business-to-business and business-to-consumer transactions.

This book explains how alternative dispute resolution (ADR) first moved online, how it evolved, and how ODR is now being applied. The authors bring you in-depth discussion of the legal issues raised by this trend, including questions involving jurisdiction; conflicts of law; e-commerce regulations; privacy; consumer protection; and security. You'll find out about the different types of ODR methods and how to incorporate them into your practice. You'll also benefit from a helpful survey of ODR providers around the U.S. and internationally. This complete treatment of ODR is both an excellent introduction to this increasingly popular technique and a useful manual for practitioners.

PART I
Moving ADR Online: The Internet Synergies, Enhancements and Problems
INTRODUCTION TO PART I

CHAPTER 1
An Overview of Alternative Dispute Resolution in the Offline World
- 1.01 Introduction
- 1.02 What is ADR?
- 1.03 Mediation in the Offline World
[1] Initiating Mediation
[2] The Mediator
[3] Ground Rules for Mediation
[4] The Mediation Session
- 1.04 Arbitration in the Offline World
[1] Initiating Arbitration
[2] The Arbitrator
[3] Pre-Arbitration Procedures
[4] The Arbitration Proceeding
[5] International Arbitration
- 1.05 Comparing Mediation, Arbitration and Litigation
- 1.06 Utilizing “Med-Arb”—a Hybrid Mediation/Arbitration Procedure—as an Increasingly Popular ADR Modality

CHAPTER 2
Online Dispute Resolution Methods
- 2.01 Introduction
- 2.02 The History of Online Dispute Resolution
[1] Virtual Magistrate
[2] Mediate-net: The University of Maryland Law School's Online Mediation Project
[3] Online Ombuds Office
- 2.03 Dispute Resolution in Cyberspace: The Impact of Online Communication
[1] Resolving Disputes in Asynchronous Time
[2] Text-Based Communication: Can Dispute Resolution Work Effectively Without Face-to-Face Contact?
- 2.04 An Initial Step Toward ODR: Using the Internet as an Adjunct to Offline ADR
- 2.05 Moving Traditional Mediation Entirely Online
- 2.06 Moving Traditional Arbitration Entirely Online
[1] The Online Arbitration Process
[2] The “Seat” of the Online Arbitration
[3] Enforcing Agreements to Arbitrate: “Writing” and “Signature” Requirements
[4] Admissibility of Electronic Evidence
[5] Enforcing Online Arbitral Awards
- 2.07 Other Types of ODR: Online Innovations
[1] Online Negotiation
[2] Blind Bidding
[3] Public Comment and Virtual Juries

CHAPTER 3
ODR: A Practice Guide
- 3.01 Introduction
- 3.02 Present Uses of ODR
[1] Online Arbitration: Domain Name Disputes
[2] Online Mediation: Small Claims and the eBay Project
[3] Online Blind Bidding: Insurance Claims
- 3.03 Incorporating ODR into Your Practice
[1] Selecting Cases and Choosing an ODR Process
[2] Choosing an ODR Provider
[3] ODR Contract Clauses and Submission Agreements
[4] Preparing for ODR: The Use of Simulations
[5] ODR Advocacy
- 3.04 A Survey of Selected ODR Providers
[1] United States
[2] European Union: ECODIR
[3] Selected ODR Providers in Other Countries

PART II
The Confluence of E-Commerce and ODR
INTRODUCTION TO PART II

CHAPTER 4
The Nature of E-Commerce
- 4.01 What is E-Commerce?
- 4.02 The E-Commerce Explosion
- 4.03 The E-Commerce Players
[1] Consumers and Business to Consumer (B2C) Transactions
[2] Businesses and Business to Business (B2B) Transactions

CHAPTER 5
Establishing Jurisdiction Over E-Businesses—Problems and Conflicting Pulls at Home and Abroad
- 5.01 Introduction
- 5.02 Personal Jurisdiction: The Focus on Physical Place
[1] Personal Jurisdiction in the United States—The Effect on E-Commerce
[2] Personal Jurisdiction in the European Union
[3] Personal Jurisdiction in Other Countries: The Internet's Potential Reach
- 5.03 Extraterritoriality
- 5.04 Conflict of Laws: Determining Whose Law Applies to E-Commerce Disputes
[1] Choice of Law Rules in the United States
[2] Choice of Law Rules in the European Union
[3] Choice of Law Rules in Other Countries
- 5.05 The Use of Choice of Forum and Choice of Law Clauses to Limit Jurisdiction Over E-Businesses
[1] Enforcement in the United States
[2] Enforcement in Other Countries
- 5.06 Working Group Proposals
[1] ABA Global Cyberspace Jurisdiction Project
[2] Hague Conference on Private International Law

CHAPTER 6
Regulating E-Commerce: Current Schemes, Proposals for the Future and the Role of ODR
- 6.01 Introduction
- 6.02 How E-Commerce Should Be Regulated: The Debate
[1] Self Regulation
[2] National Government Oversight: Co-Regulation
[3] International Cooperation: Harmonizing National Laws
[4] Hybrid Approaches
- 6.03 The Present State of E-Commerce Regulation: A Comparison of Selected Approaches by Country
[1] United States
[2] European Union
[3] Canada
[4] Australia and New Zealand
[5] The Philippines
- 6.04 E-Commerce and ODR Initiatives at the International Level
[1] Multinational Government Initiatives
[2] Industry Initiatives
[3] Consumer Association Initiatives
[4] Academic Studies: The American Bar Association (ABA)

CHAPTER 7
Dispute Prevention: Privacy, Security and Consumer Protection Concerns
- 7.01 Introduction
- 7.02 The Process of Online Collection and Dissemination of Consumer Information
[1] The Collection of Personal Data from Consumers
[2] The Creation of Individual Consumer Profiles
[3] The Use and Dissemination of Personal Consumer Information
- 7.03 Security and Confidentiality of Information Transmitted Online
- 7.04 Online Privacy Protection in the United States
[1] 1998 FTC Report to Congress
[2] 1999 FTC Report to Congress
[3] 2000 FTC Report to Congress
[4] Federal Privacy Efforts Between 2000 and 2010
[5] 2010 FTC Report to Congress
- 7.05 Online Privacy Protection in the European Union: The E.U. Data Protection Directive
- 7.06 The E.U.-U.S. Safe Harbor Agreement
- 7.07 Self Regulatory Consumer Protection Initiatives: A Survey of Programs
[1] Trustmarks and Codes of Conduct
[2] European Trustmark Standardization and Certification Efforts
[3] E-Business Rating Systems
[4] Guarantees and Chargebacks

CHAPTER 8
Designing an ODR System: Issues and Proposals
- 8.01 Introduction
- 8.02 Structuring ODR Programs
[1] Who Should Provide ODR and How?
[2] Paying for ODR
[3] Overcoming Social Obstacles to the Use of ODR
- 8.03 Model Practices for ODR Providers
[1] Transparency
[2] Neutrality and Independence
[3] Confidentiality and Security of Communications
[4] Training of ODR Neutrals
- 8.04 Procedural Fairness and the Privatization of Legal Functions
- 8.05 Enforcement of ODR Awards and Settlements

CHAPTER 9
Recommendations and Predictions
- 9.01 E-Commerce and ODR: Recommendations
[1] Continued Self Regulation of E-Commerce: Dispute Prevention Through Best Practices
[2] Self Regulation of ODR: Transparency and ODR Promotion
[3] The Appropriate Role for Government
[4] International-Level Cooperation: Creating B2B (Business-to-Business) Standards for Electronic Contracting, and Jurisdiction and Applicable Law
[5] Open Issues: Jurisdiction and Applicable Law in B2C (Business-to-Consumer) Disputes, Enforcement Mechanisms, and Court Oversight of Online Arbitration
- 9.02 The Future of ODR: Predictions
[1] Improvements In ODR Technology
[2] Growth in the Use of ODR in B2B E-Commerce
[3] A Move from Commercial to Nonprofit ODR Providers in B2C E-Commerce
[4] Growth in the Use of ODR for Offline Disputes and by Government

APPENDICES
INDEX

Cynthia Reed



Cynthia Reed is a 1990 graduate of the University of Minnesota Law School. A solo practitioner as well as a trained mediator, she previously served as a trial attorney for the Civil Division of the U.S. Department of Justice. Ms. Reed is a member of the New York and New Jersey bars.

Norman Solovay



Mr. Solovay is currently Chair of the Alternative Dispute Resolution practice at McLaughlin & Stern, LLP. After a long career as a litigator of cases ranging from business and personal divorces through security fraud class actions and antitrust cases he now heads a practice dedicated to avoiding or ending litigation wherever possible. His Department, when the standbys of mediation and arbitration are not a good fit, also utilizes increasingly popular settlement techniques such as collaborative law, med-arb, and settlement counsel. It serves as either neutral, counsel to one side in a dispute and/or as drafters of the most suitable dispute resolution contract clauses.

Mr. Solovay obtained his B.A. at Cornell University and, following service as a Lieutenant in the Korean War, graduated from Columbia University where he was a Harlan Fiske Stone Scholar and Law Review Editor. Commencing out of law school as an associate at what was then Rosenman, Goldmark, Colin & Kaye, he went on to serve as Law Secretary to then Justice Charles D. Breitel, following which for many years he headed the Litigation Department of Holtzmann, Wise & Shepard, whose clients included Allen & Company and the Onassis interests and whose managing partner was Chair of the American Arbitration Association.

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