Providing legal services for the middle class in cyberspace: The promise and challenge of on-line dispute resolution

Fordham Law Review

Volumn 70, Issue 3, 2001, Pages 985-1016

  Teitz, Louise Ellen ^a  

^a NONE

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EID: 0347122187     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (140)

1. This change is reflected in the Ethics 2000 proposal of a new rule, Rule 2.4, to address the lawyer serving as third-party neutral, since "[a]ternative dispute resolution has become a substantial part of the civil justice system." ABA Ethics 2000 Comm'n, Comm'n on Evaluation of the Rules of Prof'l Conduct, Report with Recommendations to the House of Delegates, R. 2.4 cmt. 1 (Proposed Rule August 2001), at http://www.abanet.org/cpr/e2k-report_home.html [hereinafter Ethics 2000 Commission].
2. See, e.g., Council of Better Business Bureaus, Inc. & BBBOnline, White Paper, Protecting Consumers in Cross-Border Transactions: A Comprehensive Model for Alternative Dispute Resolution (2000), http://www.bbbonline.org/about/press/ WhitePaper.doc. The website has a specific section allowing one to "File a Complaint." http://bbbonline.org (last visited Oct. 24, 2001). Another website for filing "e-commerce cross-border complaints" is http://www.econsumer.gov, a site which is a joint project of the International Marketing Supervision Network and the Consumer Sentinel and maintained by the FTC. The site provides for complaints to be filed in multiple languages.
3. The increasing acceptance of mediation is illustrated by developments both in the U.S. and internationally. In the United States, the National Conference of Commissioners On Uniform State Laws approved and recommended the Uniform Mediation Act in August 2001. Uniform Mediation Act (2001), available at http://www.nccusl.org/nccusl/Annual_Meeting_2001/MED01AM.pdf. In the international arena, UNCITRAL has been working on model legislative provisions on conciliation. See Report of the Working Group on Arbitration on the Work of its Thirty-Fourth Session, U.N. Doc. A/CN.9/487 (2001), http://www.uncitral.org/en-index.htm [hereinafter Report of Working Group].
4. The Civil Justice Reform Act of 1990 ("CJRA") required all federal district courts to develop plans for reducing costs and delay and recommended ADR as one of six case management principles. 28 U.S.C. §§ 471-82 (1994). As a result, most district courts provided for some form of ADR. For a review of the different plans in the federal courts, see Elizabeth Plapinger & Donna Stienstra, Federal Judicial Center & CPR Institute for Dispute Resolution, ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers (1996), http://www.ftc.gov/ ALTDISRES/adrsource/adrblurb.html. The RAND Institute for Civil Justice also produced several studies on ADR and the courts, including one on mediation under the CJRA plans. See James S. Kakalik, RAND Institute for Civil Justice, An Evaluation of Mediation and Early Neutral Evaluation under the Civil Justice Reform Act (1996). U.S. District Courts are required to offer litigants in civil cases alternative dispute mechanisms to resolve their conflicts. 28 U.S.C. §§ 651-58 (1994).
5. See, e.g., http://www.clicknsettle.com (last visited Oct. 24, 2001); http:// www.cybersettle.com (last visited Oct. 24, 2001); http://www.settleonline.com (last visited Oct. 24, 2001); see infra Part I.B.1.
6. See Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 Geo. J. Legal Ethics 209 (1990).
7. Even the American Bar Association has recognized the significance of "elawyering." The ABA maintains a website that provides guidance for lawyers that practice on-line. See http://www.elawyering.org. "The distinction between legal 'information' and legal 'advice' is of critical importance as lawyers move their practices online." Legal Information vs. Legal Advice, http://www.elawyering. org/ethics/advice.asp (last visited Oct. 24, 2001). Under "Legal Websites Best Practice Guidelines," the ABA suggests that the site define "the difference between legal information and legal advice and a warning to the user that the site does not constitute legal advice and is not a substitute for the professional judgment of an attorney." Elawyering Taskforce, ABA, Legal Websites Best Practice Guidelines (2001), http://www.elawyering.org/tools/practices.asp [hereinafter Legal Websites Guidelines]. Laypersons may not recognize any distinction in kind among the terms "legal services," "legal information," and "legal advice." Lawyers, like yourselves, are exploring this new Internet landscape. They [sic] not just advertising but finding new techniques to deliver legal services on-line. They are using client intakes [sic] forms or document drafting systems that the client [sic] fill out and the lawyer [sic] add value. They have found way [sic] to use e-mail, discussion forums and even private "chat" or "deal" rooms to keep their clients informed and well advised, at significantly lower costs than traditional service models. These lawyers have the vision to see a wholly new market of un-met legal needs. Elawyering Basics, http://www.elawyering.org/what/basics.asp (last visited Nov. 1, 2001).
8. See ABA Ethics 2000 Commission, supra note 1. [2] The role of a third-party neutral is not unique to lawyers. . . . In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution. ABA Ethics 2000 Commission, supra note 1, R.2.4 cmt. 2 (Proposed Rule).
9. See infra at notes 79-86 and accompanying text.
10. See generally Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147 (1999); Richard Zorza, ReConceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity, 67 Fordham L. Rev. 2659 (1999); Katy Ellen Deady, Note, Cyberadvice: The Ethical Implications of Giving Professional Advice over the Internet, 14 Geo. J. Legal Ethics 891 (2001).
11. See generally Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147 (1999); Richard Zorza, ReConceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity, 67 Fordham L. Rev. 2659 (1999); Katy Ellen Deady, Note, Cyberadvice: The Ethical Implications of Giving Professional Advice over the Internet, 14 Geo. J. Legal Ethics 891 (2001).
12. See generally Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147 (1999); Richard Zorza, ReConceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity, 67 Fordham L. Rev. 2659 (1999); Katy Ellen Deady, Note, Cyberadvice: The Ethical Implications of Giving Professional Advice over the Internet, 14 Geo. J. Legal Ethics 891 (2001).
13. For Bar opinions relating to chatrooms and issues of solicitation, see Ill. State Bar Ass'n Op. No. 96-10 (1997); Mich. Prof'l Jud. Ethics Op. RI-276 (1996); Utah State Bar Ethics Advisory Op. Comm. Op. No. 97-10 (1997).
14. See Unauthorized Practice of Law Comm. v. Parsons Tech., Inc., No. CIV.A3.97CV-2859H, 1999 WL 47235 (N.D. Tex. Jan. 22, 1999) (distributing software, Quicken Family Lawyer, was a violation of unauthorized practice of law), vacated by 179 F.3d 956 (5th Cir. 1999). See generally Julee C. Fischer, Note, Policing the Self-Help Legal Market: Consumer Protection or Protection of the Legal Cartel?, 34 Ind. L. Rev. 121, 130-34 (2000).
15. For example, the Maine State Bar Association provides forms for several court actions, including divorce and child support. See http://www.mainebar.org/ pages/forms.html (last visited Oct. 24, 2001); see also http://www.nolo.com (last visited Oct. 24, 2001); http://www2.desktoplawyer.co.uk/dt/browse/law/ (last visited Oct. 24, 2001).
16. Another related issue is the effectiveness of disclaimers by lawyers on the creation of a lawyer-client relationship or of any ethical responsibilities. Many of these disclaimers seek to avoid any potential liability under contract law. The websites of many law firms, bar associations, and consumer self-help services contain extensive disclaimers. See supra note 7. The Legal Websites Best Practice Guidelines provide two examples of disclaimers, both of which focus on the need to consult a lawyer "'if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.'" Legal Websites Guidelines, supra note 7 (quoting http://www.nolo.com).
17. See Ariz. Ethics Op. 99-06 (1999); Mass. Ethics Op. 98-2 (1998); N.Y.C. Ethics Op. 1998-2 (1998); Ohio Supreme Court Ethics Op. 99-3 (1999). See generally Louise L. Hill, Lawyer Communications on the Internet: Beginning the Millennium with Disparate Standards, 75 Wash. L. Rev. 785 (2000).
18. Model Rules of Prof'l Conduct R. 5.4 (1998). Multidisciplinary practice has been very controversial. The ABA House of Delegates reaffirmed its policy against multidisciplinary practice in July 2000. The Commission on Multidisciplinary Practice produced a final report. See ABA Commission on Multidisciplinary Practice, Report to the House of Delegates (2000), http://www.abanet.org/ cpr/mdpfinalrep2000.html. The ABA has also compiled a survey of the status of state regulation of multidisciplinary practice as of October 12, 2001. See MDP Information, at http://www.abanet.org/cpr/mdp_state_summ.html (last visited Oct. 24, 2001). For additional information, see ABAnetwork Center for Professional Responsibility, at http://www.abanet.org/cpr/multicom.html (last visited Oct. 24, 2001). See generally Mary C. Daly, Choosing Wise Men Wisely: The Risks and Rewards of Purchasing Legal Services From Lawyers in a Multidisciplinary Partnership, 13 Geo. J. Legal Ethics 217 (2000); John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000).
19. Model Rules of Prof'l Conduct R. 5.4 (1998). Multidisciplinary practice has been very controversial. The ABA House of Delegates reaffirmed its policy against multidisciplinary practice in July 2000. The Commission on Multidisciplinary Practice produced a final report. See ABA Commission on Multidisciplinary Practice, Report to the House of Delegates (2000), http://www.abanet.org/ cpr/mdpfinalrep2000.html. The ABA has also compiled a survey of the status of state regulation of multidisciplinary practice as of October 12, 2001. See MDP Information, at http://www.abanet.org/cpr/mdp_state_summ.html (last visited Oct. 24, 2001). For additional information, see ABAnetwork Center for Professional Responsibility, at http://www.abanet.org/cpr/multicom.html (last visited Oct. 24, 2001). See generally Mary C. Daly, Choosing Wise Men Wisely: The Risks and Rewards of Purchasing Legal Services From Lawyers in a Multidisciplinary Partnership, 13 Geo. J. Legal Ethics 217 (2000); John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000).
20. Model Rules of Prof'l Conduct R. 5.4 (1998). Multidisciplinary practice has been very controversial. The ABA House of Delegates reaffirmed its policy against multidisciplinary practice in July 2000. The Commission on Multidisciplinary Practice produced a final report. See ABA Commission on Multidisciplinary Practice, Report to the House of Delegates (2000), http://www.abanet.org/ cpr/mdpfinalrep2000.html. The ABA has also compiled a survey of the status of state regulation of multidisciplinary practice as of October 12, 2001. See MDP Information, at http://www.abanet.org/cpr/mdp_state_summ.html (last visited Oct. 24, 2001). For additional information, see ABAnetwork Center for Professional Responsibility, at http://www.abanet.org/cpr/multicom.html (last visited Oct. 24, 2001). See generally Mary C. Daly, Choosing Wise Men Wisely: The Risks and Rewards of Purchasing Legal Services From Lawyers in a Multidisciplinary Partnership, 13 Geo. J. Legal Ethics 217 (2000); John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000).
21. Model Rules of Prof'l Conduct R. 5.4 (1998). Multidisciplinary practice has been very controversial. The ABA House of Delegates reaffirmed its policy against multidisciplinary practice in July 2000. The Commission on Multidisciplinary Practice produced a final report. See ABA Commission on Multidisciplinary Practice, Report to the House of Delegates (2000), http://www.abanet.org/ cpr/mdpfinalrep2000.html. The ABA has also compiled a survey of the status of state regulation of multidisciplinary practice as of October 12, 2001. See MDP Information, at http://www.abanet.org/cpr/mdp_state_summ.html (last visited Oct. 24, 2001). For additional information, see ABAnetwork Center for Professional Responsibility, at http://www.abanet.org/cpr/multicom.html (last visited Oct. 24, 2001). See generally Mary C. Daly, Choosing Wise Men Wisely: The Risks and Rewards of Purchasing Legal Services From Lawyers in a Multidisciplinary Partnership, 13 Geo. J. Legal Ethics 217 (2000); John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000).
22. Model Rules of Prof'l Conduct R. 5.4 (1998). Multidisciplinary practice has been very controversial. The ABA House of Delegates reaffirmed its policy against multidisciplinary practice in July 2000. The Commission on Multidisciplinary Practice produced a final report. See ABA Commission on Multidisciplinary Practice, Report to the House of Delegates (2000), http://www.abanet.org/ cpr/mdpfinalrep2000.html. The ABA has also compiled a survey of the status of state regulation of multidisciplinary practice as of October 12, 2001. See MDP Information, at http://www.abanet.org/cpr/mdp_state_summ.html (last visited Oct. 24, 2001). For additional information, see ABAnetwork Center for Professional Responsibility, at http://www.abanet.org/cpr/multicom.html (last visited Oct. 24, 2001). See generally Mary C. Daly, Choosing Wise Men Wisely: The Risks and Rewards of Purchasing Legal Services From Lawyers in a Multidisciplinary Partnership, 13 Geo. J. Legal Ethics 217 (2000); John S. Dzienkowski & Robert J. Peroni, Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century, 69 Fordham L. Rev. 83 (2000).
23. See, e.g., Arizona Ethics Op. 99-06 (1999); Ohio Supreme Court Ethics Op. 99-93 (1999).
24. Prescriptive jurisdiction refers to the ability of a sovereign to prescribe substantive laws or legislative rules and is also called "legislative jurisdiction." Prescriptive jurisdiction controls the extraterritorial application of law by a sovereign or the application of mandatory laws. It then overlaps with "choice of law." One obvious example of prescriptive jurisdiction and extraterritorial application of law is in the context of U.S. antitrust laws, which have spawned significant controversy, especially when applied to conduct that takes place, in part or in whole, outside the sovereign's territory. The extraterritorial aspect is further complicated when considering regulation of cyberspace since there is no uniformity in defining what constitutes a sovereign's "territory" in connection with transactions occurring in whole or in part in cyberspace and by electronic means. See infra note 107.
25. The ABA Commission on Multijurisdictional Practice is currently studying these issues and has held hearings. Information on the hearings, a bibliography of sources, and surveys of current practice are available at http://www.abanet.org/cpr/mjp-home.html (last visited Oct. 24, 2001). The Ethics 2000 Commission has recommended revisions to Rule 5.5 to clarify what is unauthorized practice in both litigation and counseling contexts and choice of law in connection with disciplinary authority Rule 8.5. Ethics 2000 Commission, supra note 1, R. 5.5, 8.5 (Proposed Rules).
26. In discussing the issue in the context of unauthorized practice, the ABA's elawyering site states: "E-mail messages and web discussions raise questions about whether and when a lawyer is giving advice in another jurisdiction (where she is not licensed). As the interactivity and sophistication of legal websites increases, lawyers will increasingly find themselves at risk of prosecution." Ethical Issues: Summary, at http://www.elawyering.org/ethics/ethics.asp (last visited Oct. 24, 2001).
27. See Zorza, supra note 10, at 2663-67 & nn. 14-16 & 19 (discussing the impact of technology on different ethical duties and categorizing different innovative deliveries of legal services, including the "brief service and advice").
28. The New York Times Magazine reported that a fifteen-year old boy had become the leading legal expert on the website Askme.com, answering hundreds of legal questions daily. The student had listed himself as someone who was legally trained and an adult. Michael Lewis, Faking It, N.Y. Times, July 15, 2001, at 32 (Magazine).
29. See infra notes 32-36 and accompanying text.
30. As the ABA Standing Committee on Delivery of Legal Services has said: Laypersons are usually not aware that only an attorney who is a member of a bar can provide legal advice and the attorney can only provide legal advice about the law in the state in which he is barred. Users may believe that a "chat" with an attorney is the equivalent of receiving legal advice. Legal Websites Guidelines, supra note 7.
31. One way to view ODR is as a concentric circle within on-line legal services or web-based legal services but sometimes it can be used interchangeably in light of the broader definition of what constitutes dispute resolution. Both circles share problems of maintaining quality and ethical standards. This article focuses on the smaller area of ODR and does not address in detail some of the other areas that also offer promise for middle-class lawyering, such as the "self-help" sites and gel referral sites.
32. See generally Frank A. Cona, Application of Online Systems in Alternative Dispute Resolution, 45 Buff. L. Rev. 975 (1997); M. Scott Donahey, Dispute Resolution in Cyberspace, J. Int'l Arb., Dec. 1998, at 127; M. Scott Donahey, Current Developments in Online Dispute Resolution, J. Int'l Arb., Dec. 1999, at 115; Veijo Heiskanen, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1999, at 29; Michael E. Schneider & Christopher Kuner, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1997, at 3.
33. See generally Frank A. Cona, Application of Online Systems in Alternative Dispute Resolution, 45 Buff. L. Rev. 975 (1997); M. Scott Donahey, Dispute Resolution in Cyberspace, J. Int'l Arb., Dec. 1998, at 127; M. Scott Donahey, Current Developments in Online Dispute Resolution, J. Int'l Arb., Dec. 1999, at 115; Veijo Heiskanen, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1999, at 29; Michael E. Schneider & Christopher Kuner, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1997, at 3.
34. See generally Frank A. Cona, Application of Online Systems in Alternative Dispute Resolution, 45 Buff. L. Rev. 975 (1997); M. Scott Donahey, Dispute Resolution in Cyberspace, J. Int'l Arb., Dec. 1998, at 127; M. Scott Donahey, Current Developments in Online Dispute Resolution, J. Int'l Arb., Dec. 1999, at 115; Veijo Heiskanen, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1999, at 29; Michael E. Schneider & Christopher Kuner, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1997, at 3.
35. See generally Frank A. Cona, Application of Online Systems in Alternative Dispute Resolution, 45 Buff. L. Rev. 975 (1997); M. Scott Donahey, Dispute Resolution in Cyberspace, J. Int'l Arb., Dec. 1998, at 127; M. Scott Donahey, Current Developments in Online Dispute Resolution, J. Int'l Arb., Dec. 1999, at 115; Veijo Heiskanen, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1999, at 29; Michael E. Schneider & Christopher Kuner, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1997, at 3.
36. See generally Frank A. Cona, Application of Online Systems in Alternative Dispute Resolution, 45 Buff. L. Rev. 975 (1997); M. Scott Donahey, Dispute Resolution in Cyberspace, J. Int'l Arb., Dec. 1998, at 127; M. Scott Donahey, Current Developments in Online Dispute Resolution, J. Int'l Arb., Dec. 1999, at 115; Veijo Heiskanen, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1999, at 29; Michael E. Schneider & Christopher Kuner, Dispute Resolution in International Electronic Commerce, J. Int'l Arb., Nov. 1997, at 3.
37. While there is no agreement as to what percentage of the dispute resolution must take place on-line, most agree that sending an e-mail instead of a fax to a client does not convert the service into ODR.
38. The Inter-Pacific Bar Association ("IPBA") is in the process of establishing a CyberArbitration center. See infra Part I.B.1.
39. The best known examples of the high automation form are: clicknsettle, cybersettle, and settleon-line. See infra notes 67-69 and accompanying text.
40. The dispute resolution may occur off-line, such as with traditional court or out-of-court means. This article will not focus on the category of disputes that are generated by on-line activity but handled off-line. These could include disputes in connection with defamation actions on the Internet, claims connected with the delivery of goods or services on-line, or actions arising out of electronic contracting.
41. See infra Part I.D.
42. The efforts of The Hague Conference on Private International Law to negotiate an international convention for the enforcement of foreign judgments illustrates the increasing role that e-commerce has played, especially in connection with issues of jurisdiction. See Hague Conference on Private International Law, Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Interim Text (2001), http://www.hcch.net/e/workprog/jdgm.html. The website also contains several studies of e-commerce and jurisdiction undertaken by the Hague Conference in connection with the negotiations. "Around the time the treaty writers sat down to work, the e-commerce sector took off. Suddenly, they found themselves trying to set global rules on how to regulate a new form of commerce that hardly recognized borders." Paul Hofheinz, Global Treaty On E-Commerce Faces Hurdles, Wall St. J., Aug. 16, 2001, at A11.
43. See, e.g., Council Regulation 44/2001 of 22 December 2000 on Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2001 O.J. (L 12), http://europa.eu.int/scadplus/leg/en/lvb/133054.htm (entering into force on March 1, 2002).
44. See, e.g., Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the Protection of Consumers in Respect of Distance Contracts, 1997 O.J. (L 144) 19, http://europa.eu.int/eur-lex/en/lif/dat/1997/en_397/0007.html; Directive 99/44/EC of the European Parliament and of the Council of 25 May 1999 on the Sale of Consumer Goods and Associated Guarantees, 1999 O.J. (L 171) 12, http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!prod!CELEXnumdoc&lg=Enenu mdoc=31999L0044&model=guichett; Directive 2000/31/EC of 8 June 2000 of the European Parliament and of the Council on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce ("Directive on electronic commerce"), 2000 O.J. (L 178) 1, www.fs.dk/uk/acts/eu/ehand-uk.htm; infra notes 77-86 and accompanying text. In the recent Commission Recommendation, the European Commission stated that a consumer should be informed of his option "of seeking legal redress through his own judicial system." Commission Recommendation 2001/310/EC of 4 April 2001 on the Principles for Out-of-Court Bodies Involved in the Consensual Resolution of Consumer Disputes, 2001 O.J. (L 109) 56, http://europa.er.int/cornm/consumers/whatsnew/oldnews0105en.html.
45. See, e.g., Press Release, Federal Trade Commission, FTC, Commerce to Host Public Workshop to Explore Online Dispute Resolution (Feb. 9, 2000), www.ftc.gov/opa/2000/oz/adrrev.htm. "Consumer confidence also requires that consumers have access to fair and effective redress for problems arising in the online marketplace. At the same time, it is important to encourage the growth of this new marketplace and to avoid unduly burdening businesses, particularly small- and medium-sized enterprises." Id. The report of the Joint Workshop, released in November 2000, details consumer concerns. See FTC & Dept. of Commerce, Summary of Public Workshop (Nov. 2000), www.ftc.gov/bcp/altdisresolution/summary.htm; see also FTC Public Roundtable: Dispute Resolution for Online Business-to-Consumer Contracts (Feb. 6, 2001), www.ftc.gov/bcp/altdisresolution/roundtable/index.htm. The FTC has also tried to educate sellers online. See Electronic Commerce: Selling Internationally, A Guide for Business, at www.ftc.gov/bcp/conline/pubs/ alerts/ecombalrt.htm (last visited Oct. 24, 2001). The U.S. government, like other governmental and non-governmental entities, has several different agencies and organizations studying aspects of electronic commerce, illustrative of the fragmented approach evident especially in the area of consumer use of the Internet and electronic commerce dispute resolution.
46. See, e.g., Press Release, Federal Trade Commission, FTC, Commerce to Host Public Workshop to Explore Online Dispute Resolution (Feb. 9, 2000), www.ftc.gov/opa/2000/oz/adrrev.htm. "Consumer confidence also requires that consumers have access to fair and effective redress for problems arising in the online marketplace. At the same time, it is important to encourage the growth of this new marketplace and to avoid unduly burdening businesses, particularly small- and medium-sized enterprises." Id. The report of the Joint Workshop, released in November 2000, details consumer concerns. See FTC & Dept. of Commerce, Summary of Public Workshop (Nov. 2000), www.ftc.gov/bcp/altdisresolution/summary.htm; see also FTC Public Roundtable: Dispute Resolution for Online Business-to-Consumer Contracts (Feb. 6, 2001), www.ftc.gov/bcp/altdisresolution/roundtable/index.htm. The FTC has also tried to educate sellers online. See Electronic Commerce: Selling Internationally, A Guide for Business, at www.ftc.gov/bcp/conline/pubs/ alerts/ecombalrt.htm (last visited Oct. 24, 2001). The U.S. government, like other governmental and non-governmental entities, has several different agencies and organizations studying aspects of electronic commerce, illustrative of the fragmented approach evident especially in the area of consumer use of the Internet and electronic commerce dispute resolution.
47. See, e.g., Press Release, Federal Trade Commission, FTC, Commerce to Host Public Workshop to Explore Online Dispute Resolution (Feb. 9, 2000), www.ftc.gov/opa/2000/oz/adrrev.htm. "Consumer confidence also requires that consumers have access to fair and effective redress for problems arising in the online marketplace. At the same time, it is important to encourage the growth of this new marketplace and to avoid unduly burdening businesses, particularly small- and medium-sized enterprises." Id. The report of the Joint Workshop, released in November 2000, details consumer concerns. See FTC & Dept. of Commerce, Summary of Public Workshop (Nov. 2000), www.ftc.gov/bcp/altdisresolution/summary.htm; see also FTC Public Roundtable: Dispute Resolution for Online Business-to-Consumer Contracts (Feb. 6, 2001), www.ftc.gov/bcp/altdisresolution/roundtable/index.htm. The FTC has also tried to educate sellers online. See Electronic Commerce: Selling Internationally, A Guide for Business, at www.ftc.gov/bcp/conline/pubs/ alerts/ecombalrt.htm (last visited Oct. 24, 2001). The U.S. government, like other governmental and non-governmental entities, has several different agencies and organizations studying aspects of electronic commerce, illustrative of the fragmented approach evident especially in the area of consumer use of the Internet and electronic commerce dispute resolution.
48. See, e.g., Press Release, Federal Trade Commission, FTC, Commerce to Host Public Workshop to Explore Online Dispute Resolution (Feb. 9, 2000), www.ftc.gov/opa/2000/oz/adrrev.htm. "Consumer confidence also requires that consumers have access to fair and effective redress for problems arising in the online marketplace. At the same time, it is important to encourage the growth of this new marketplace and to avoid unduly burdening businesses, particularly small- and medium-sized enterprises." Id. The report of the Joint Workshop, released in November 2000, details consumer concerns. See FTC & Dept. of Commerce, Summary of Public Workshop (Nov. 2000), www.ftc.gov/bcp/altdisresolution/summary.htm; see also FTC Public Roundtable: Dispute Resolution for Online Business-to-Consumer Contracts (Feb. 6, 2001), www.ftc.gov/bcp/altdisresolution/roundtable/index.htm. The FTC has also tried to educate sellers online. See Electronic Commerce: Selling Internationally, A Guide for Business, at www.ftc.gov/bcp/conline/pubs/ alerts/ecombalrt.htm (last visited Oct. 24, 2001). The U.S. government, like other governmental and non-governmental entities, has several different agencies and organizations studying aspects of electronic commerce, illustrative of the fragmented approach evident especially in the area of consumer use of the Internet and electronic commerce dispute resolution.
49. See, e.g., Press Release, Federal Trade Commission, FTC, Commerce to Host Public Workshop to Explore Online Dispute Resolution (Feb. 9, 2000), www.ftc.gov/opa/2000/oz/adrrev.htm. "Consumer confidence also requires that consumers have access to fair and effective redress for problems arising in the online marketplace. At the same time, it is important to encourage the growth of this new marketplace and to avoid unduly burdening businesses, particularly small- and medium-sized enterprises." Id. The report of the Joint Workshop, released in November 2000, details consumer concerns. See FTC & Dept. of Commerce, Summary of Public Workshop (Nov. 2000), www.ftc.gov/bcp/altdisresolution/summary.htm; see also FTC Public Roundtable: Dispute Resolution for Online Business-to-Consumer Contracts (Feb. 6, 2001), www.ftc.gov/bcp/altdisresolution/roundtable/index.htm. The FTC has also tried to educate sellers online. See Electronic Commerce: Selling Internationally, A Guide for Business, at www.ftc.gov/bcp/conline/pubs/ alerts/ecombalrt.htm (last visited Oct. 24, 2001). The U.S. government, like other governmental and non-governmental entities, has several different agencies and organizations studying aspects of electronic commerce, illustrative of the fragmented approach evident especially in the area of consumer use of the Internet and electronic commerce dispute resolution.
50. See, e.g., Electronic Data Interchange, Internet and Electronic Commerce, Hague Conference on Private International Law, Prel. Doc. No. 7, April 2000;
51. EC Joint Research Centre EC DG Information Society, Workshop on Out of Court Dispute Settlement in Trans-Border Electronic Commerce (21 March 2001), http://dsa_isis.jrc.it/ADR/workshop.html;
52. Building Trust in the Online Environment: Business to Consumer Dispute Resolution Conference 12-13 (Dec. 2000) (reporting on joint conference organized by the OECD, ICC, and the Hague Conference), http://www.olis.oecd.org/olis/2001doc.nsf/LinkTo/DSTI_ICCP_ REG_CP(2001)2; see infra notes 72-86 and accompanying text.
53. See generally Internet: Which Court Decides? Which Law Applies? (Katharina Boele-Woelki & Catherine Kessedjian eds., 1998); American Bar Association Jurisdiction in Cyberspace Project, Draft, Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet (2000). The Cyberspace Project was begun in 1998, under the leadership of the Section of Business Law, Committee on the Law of Cyberspace, with the Sections of Intellectual Property; International Law and Practice; Public Utility, Communications and Transportation Law; Science and Technology; and Taxation cosponsoring the project. Tom Vartanian chaired the Committee. The U.S. Congress has also been actively pursuing the issue of jurisdiction in cyberspace in connection with the Internet. The House Judiciary Committee, Subcommittee on Courts and Intellectual Property has been looking at those issues that are relevant to federal court jurisdiction. The Subcommittee held hearings on June 29, 2000, entitled The Internet and Federal Courts: Issues and Obstacles. The testimony is available on the US House of Representative's website, http://commdocs.house.gov/committees/judiciary/hju66042.000/hju66042-0f.htm..
54. The issues of privacy and authenticity are beyond the scope of this article.
55. The most successful example of this is the eBay/SquareTrade partnership which has helped to resolve disputes between buyers and sellers.
56. See infra notes 70-72 and accompanying text. The use of the electronic medium for arbitration and its effect on the requirement for a "writing" in connection with the existing New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as well as on the UNCITRAL Model Law on International Commercial Arbitration, has been studied recently by the UNCITRAL Working Group on Arbitration which has made some legislative and interpretative recommendations. See Report of Working Group, supra note 3.
57. These include the ICC and the American Arbitration Association.
58. These include CPR Institute for Dispute Resolution and National Arbitration Forum.
59. The ICANN rules allow submission of hardcopy as well as electronic materials. See ICANN Rules for Uniform Domain Name Dispute Resolution Policy, Rule 2(b) (1999), www.icann.org/udrp/udrp-rules-24oct99.htm; infra Part I. D.
60. For example, GeoTrust offers services to secure transactions, provide identity validation and authentication for Internet transactions. See http://www.Geotrust.com.
61. One of the best examples of the trustmark system in connection with e-commerce is the seal program established by SquareTrade which specifically incorporates reliable and inexpensive on-line dispute resolution. SquareTrade lists the five most important considerations to buyers as including "seller's commitment to mediation" and requires as part of the SquareTrade Seal that the seller is "[c]ommitted to resolving disputes-including responding to disputes filed with SquareTrade within 2 business days." SquareTrade, Seal Program, Learn More, at https://www.squaretrade.com/sap/jsp/lnm/learn_seal.jsp;jsessionid=wmssaurev1? vhost id=tomcat2&stmp=squaretrade&cntid=81gjporef1&sapid=wmssaurev1 (last visited Nov. 6, 2001).
62. For a discussion and inventory of trustmarks as of 2000, see the report prepared by the Global Business Dialogue on Electronic Commerce ("GBDe") which describes itself as "a worldwide, CEO-driven effort to develop policies that promote global electronic commerce for the benefit of businesses and consumers everywhere." The report is available at http://www.rsac.org/press/news-info.shtml (last visited Nov. 1, 2001). Some of the early European trustmarks include: Trusted Shops (http://www.trustedshops.com) and TrustUK (http://www.trustuk.org.uk).
63. Online Shopping Trust operates in Japan. See http://www.jadma.org/e (last visited Oct. 24, 2001). Three groups are currently collaborating on an international trustmark: BBBOnline, FEDMA, and Eurochambres.
64. See http://www.trustedshops.de (last visited Oct. 24, 2001). The site was originally directed at purchases from German merchants.
65. WhichOnline is at http://www.which.net/shopping/guide.html (last visited Oct. 24, 2001). WhichOnline, a UK system, is "designed to make sure consumers get a fair deal and to provide them with protection if things go wrong." The system covers mostly domestic companies. "We believe that online shopping can be both convenient and safe. Our code of practice for online traders is designed to encourage the highest possible standards and make sure that you are treated fairly." The code of practice requires that complaints be handled fairly, speedily, and consumers must be provided with procedures for solving disputes. Interestingly, the rules also require that the "web trader" or merchant must be governed by UK law, thereby removing some of the uncertainty in choice of law. WhichOnline, Online Shopping, at http://www.which.net/shopping/guide.html (last visited Oct. 24, 2001).
66. Id. WhichOnline actually avoids choice of law issues by requiring that UK law must be used.
67. For example, a recent survey by Consumers International, a group of 260 consumer organizations in almost 120 countries, found that on-line shoppers were not receiving goods they purchased or receiving refunds. In addition, only twenty percent of websites surveyed provided clear information on the total cost of the transaction. Consumers International, Should I Buy? Shopping Online 2001: An International Study of Comparative Electronic Commerce (2001), http://www. consumersinternational.org/CI_Should_I_buy.pdf.
68. SquareTrade now provides this service to eBay and several other companies.
69. See, e.g., http://BBBOnline.org (last visited Oct. 24, 2001).
70. See infra Part I.B.1.
71. For instance, one site actually allows a mock trial where the client can submit a real case to a "jury." See http://www.icourthouse.com (last visited Oct. 24, 2001). A UK site, Desktoplawyer.co.uk, allows one to prepare complicated documents and also offers a separate program for over-the-phone advice.
72. See, e.g., http://divorcenet.com (last visited Oct. 24, 2001).
73. See, e.g., http://MyCounsel.com (last visited Oct. 24, 2001); http:// askalawyer.com (last visited Nov. 9, 2001).
74. See, e.g., http://legaladviceline2.com (last visited Oct. 24, 2001); http:// lawexpress.com (last visited Oct. 24, 2001).
75. See, e.g., http://OnlineResolution.com (last visited Oct. 24, 2001); http://IntelliCourt.com (last visited Oct. 24, 2001).
76. See, e.g., http://www.mainebar.org (last visited Oct. 24, 2001).
77. See, e.g., http://www.ftc.gov (last visited Oct. 24, 2001).
78. See, e.g., http://Freeadvice.com (last visited Oct. 24, 2001); http://www.cpradr.org (last visited Oct. 24, 2001).
79. See, e.g., http://www.LawGuru.com (last visited Oct. 24, 2001).
80. See http://onlineresolution.com (last visited Oct. 24, 2001).
81. Society of Professionals in Dispute Resolution, now subsumed under Association for Conflict Resolution ("ACR").
82. This is similar to the money back guarantee given by Lawexpress.com which offers advice on a single legal issue by phone for a fee of $39.95. MyCounsel also seems to be using the ABA as a trustmark, showing a seal that says: "[t]he American Bar Association recognizes MyCounsel.com for providing innovative, affordable legal services." http://www.MyCounsel.com (last visited Nov. 1, 2001).
83. Both cybersettle.com and clicknsettle.com are oriented toward insurance claims. Cybersettle.com claims to be used by over 475 insurance companies "either directly or through their third party administrators." http://www.cybersettle.com/about (last visited Nov. 1, 2001). They also provide different pricing for lawyers and insurance companies. Settlementonline.com claims they are attorneys.
84. http://www.clicknsettle.com/online_fees.com (last visited Oct. 24, 2001).
85. It is also available twenty-four hours a day, like the Seven-Eleven, so if you get a craving to settle at 3:00 a.m., you can go on-line.
86. See generally Roger P. Alford, The Virtual World of Arbitration, J. Int'l Arb., Aug. 2001, at 449; Arsic Jasna, International Commercial Arbitration on the Internet, Has the Future Come Too Early?, J. Int'l Arb., Sept. 1997, at 209.
87. See generally Roger P. Alford, The Virtual World of Arbitration, J. Int'l Arb., Aug. 2001, at 449; Arsic Jasna, International Commercial Arbitration on the Internet, Has the Future Come Too Early?, J. Int'l Arb., Sept. 1997, at 209.
88. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 84 Stat. 692, 330 U.N.T.S. 3.
89. 14 I.L.M. 336 (1975).
90. See, e.g., http://OnlineResolution.com (last visited Oct. 24, 2001); http://www.squaretrade.com (last visited Oct. 25, 2001); http://internetneutral.com (last visited Oct. 24, 2001); http://mediate-net.org (last visited Oct. 24, 2001).
91. The mediator used e-mail to see if the noncomplaining party was willing to participate and to get the basic information. Each party provided a narrative from which the mediator attempted to distill basic issues and posit facts and conditions. Out of 225 complaints, mediation was attempted with 144. Of these, not surprisingly, three quarters were brought by buyers. About forty-six percent of disputes that were filed for mediation procedures were resolved by the mediation. The director of the UMass Center, Ethan Katsh, has written about some of the difficulties with the on-line mediation process and the impact of translating what usually occurs verbally into written text and the transferring of e-mail and messages from one party to another, with the mediator framing and shaping the communications. The process was timely, but not necessarily cost-effective if conducted for a for-profit procedure. On the other hand, it certainly increased consumer confidence of buyers on eBay when there was a potential for dispute resolution. It is questionable whether it provided more comfort than a chargeback mechanism through a credit card would do. It also may do no more than the existing mechanism eBay provides of allowing the posting of feedback that in effect ties one's reputation as a seller to buyer satisfaction. Online Ombuds has posted transcripts of five on-line mediations that were conducted in March of 1999 as part of a pilot project with ebay. See http://www.disputes.net/cyberweek2000/ebay/ebayintro.htm.
92. A mediator for SquareTrade who handles eBay complaints suggests that this is not true with eBay purchasers who engage in repeat transactions, albeit not always with the same seller.
93. "The great paradox of online mediation is that it imposes an electronic distance on the parties, while mediation is usually an oral form of dispute resolution designed to involve participants in direct interpersonal contact. . . . Cyberspace is not a 'mirror image' of the physical world." Joel B. Eisen, Are We Ready for Mediation in Cyberspace?, 1998 BYU L. Rev. 1305, 1310 (footnotes omitted).
94. As discussed earlier, these two concepts are distinct, although they may overlap. A system of on-line dispute resolution may be primarily designed to handle consumer claims resulting from on-line transactions, but may also be a means of providing redress for claims not resulting from on-line transactions. See supra notes 32-36.
95. See supra notes 32-36 and accompanying text.
96. Directive 2000/31/EC of 8 June 2000 of the European Parliament and of the Council on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce ("Directive on electronic commerce"), 2000 O.J. (L 178) 1, www.fs.dk/uk/acts/eu/ehand-uk.htm.
97. Id. at 7. Recital (52) provides: The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means. Id.
98. Id. Recital (51) provides: Each Member State should be required, where necessary, to amend any legislation which is liable to hamper the use of schemes for the out-of-court settlement of disputes through electronic channels; the result of this amendment must be to make the functioning of such schemes genuinely and effectively possible in law and in practice, even across borders. Id.
99. Id. at 14. Article 17 (2) provides: Member States shall encourage bodies responsible for the out-of-court settlement of, in particular, consumer disputes to operate in a way which provides adequate procedural guarantees for the parties concerned. Id.
100. Comm'n Joint Research Centre on Out-of-Court Dispute Settlement Systems for E-commerce, Final Report (Apr. 20, 2000).
101. Recommendations of the OECD Council Concerning Guidelines for Consumer Protection in the Context of Electronic Commerce (Dec. 9, 1999), http://www.oecd.org/dsti/sti/it/consumer/prod/CPGuidelines-final.pdf.
102. Id. at Part 2.VI.B. Businesses, consumer representatives and governments should work together to continue to provide consumers with the option of alternative dispute resolution mechanisms that provide effective resolution of the dispute in a fair and timely manner and without undue cost or burden to the consumer. Id.
103. See supra note 40.
104. The Task Force is the joint effort of five sections of the ABA and is chaired by Bruce Meyerson, Vice Chair of the Section of Dispute Resolution. The vice chair of the Task Force is Karol Denniston of the Section of Business Law. Professor Anita Ramasastry of the University of Washington School of Law serves as the Reporter and is assisted by Professor Ben Davis of Texas Wesleyan University School of Law. The Task Force maintains a website, hosted by University of Washington Center for Law, Commerce and Technology at http://www.law.washington.edu/ABAeADR.
105. See The Management of Internet Names and Addresses: Intellectual Property Issues, Final Report of the WIPO Internet Domain Name Process (Apr. 30, 1999), http://wipo2.wipo.int/process1/report/index.html; The Final Report of the Second WIPO Internet Domain Name Process, The Recognition of Rights and the Use of Names in the Internet Domain Name System (Sept. 3, 2001), http://wipo2.wipo.int/process2/report/index.html.
106. This conduct is also called "cybersquatting," and is the focus of recent United States federal legislation. The United States Anticybersquatting Consumer Protection Act was signed into law at the end of November 1999 and provides remedies for domain name disputes which, like the ICANN Rules, are non-exclusive. The Act provides for monetary damages, as well as the remedy of transfer or cancellation of a domain name offered under ICANN. The Act requires the Secretary of Commerce to study the guidelines and procedures for resolving domain name disputes, including the ICANN procedures and policies, and report to Congress within six months. See 15 U.S.C. § 1125(d) (Supp. 1999).
107. ICANN Rules for Uniform Domain Name Dispute Resolution Policy (1999), www.icann.org/udrp/udrp-rules-24oct99.htm (adopted Aug. 26, 1999). Rule 13, entitled In-Person Hearings, provides: There shall be no in-person hearings (including hearings by teleconference, videoconference, and web conference), unless the Panel determines, in its sole discretion and as an exceptional matter, that such a hearing is necessary for deciding the complaint. Id. R. 13 (emphasis added).
108. So far only four providers have been designated: eResolution; The National Arbitration Forum; CPR Institute for Dispute Resolution; and WIPO. See ICANN, Approved Providers for Uniform Domain Name Dispute Resolution Policy, at http://www.icann.org/udrp/approved-providers.htm (last updated Apr. 14, 2001). WIPO is serving as a provider and as the source of much of the format for the uniform policy and rules. ICANN allows the certified providers to issue supplemental rules not inconsistent with those of ICANN. All four providers have issued supplemental rules. Between December 1999 and November 2001, over 4699 proceedings were resolved. See ICANN Statistical Summary of Proceedings Under Uniform Domain Name Dispute Resolution Policy, at http://www.icann.org/ udrp/proceedings-stat.htm (last visited Nov. 6, 2001).
109. To fit within the rules, the dispute must meet the following three criteria: (1) domain name must be identical or confusingly similar to a name in which the complaining party has trademark rights, either registered or common law trademark; (2) the domain name holder must have no legitimate right or interest in the name; and (3) the domain name must have been registered and used in bad faith. See ICANN Rules, supra note 90, R.3(b)(ix).
110. There is a vast array of articles and studies of ICANN dispute resolution. Two well-known critics of the process are Professor Michael Geist, a law professor at the University of Ottawa, and Professor Michael Froomkin, a law professor at the University of Miami. Both maintain extensive websites with links to the significant studies of ICANN decisions. Geist produced a study of ICANN, entitled Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP, http://aix1.uottawa.ca/∼geist/geistudrp.pdf&e=42 (Aug. 2001). Froomkin edits ICANN Watch and has written several articles criticizing the ICANN domain name dispute resolution process, http://personal.law.miami.edu/∼froomkin (last visited Oct. 25, 2001).
111. SquareTrade, in its prologue to its Standards of Practice for Online Dispute Resolution, states that "[d]ue to the unique circumstances created by providing ADR services online, the SquareTrade Standards of Practice extend beyond traditional ADR standards." See http://www.squaretrade.com/cmt/jsp/lgl/ standards_med.jsp (last visited Oct. 25, 2001).
112. An analogous approach in connection with e-commerce is suggested by the UNCITRAL Model Law on Electronic Commerce which adopts a functional equivalence between electronic and non-electronic commerce. Article 5, Legal Recognition of Data Messages, provides: "Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the form of a data message." UNCITRAL Model Law on Electronic Commerce, Art. 5, U.N. Doc. A/51/628 (1998), http://www.uncitralorg/english/texts/electcom/ml-ecomm. htm.
113. See, e.g., UNCITRAL Model Law on International Commercial Arbitration, Art. 18, U.N. Doc. A/40/17, Annex I (1985), http://www.uncitral.org/ English/texts/arbitration/ml-arb.htm. Article 18, entitled, Equal Treatment of Parties, provides: "The parties shall be treated with equality and each party shall be given the full opportunity of presenting his case." Id..
114. In contrast, the ICANN system publishes decisions, but its decisions are more in the realm of administrative law and public interest, than private law. ICANN Uniform Domain Name Dispute Resolution Policy Paragraph 4j. provides: Notification and Publication. The Provider shall notify us of any decision made by an Administrative Panel. . . . All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision. ICANN Uniform Domain Name Dispute Resolution Policy (1999), http://www. icann.org/udrp/udrp-policy-24oct99.htm.
115. See supra note 94. SquareTrade Standards of Practice for Online Dispute Resolution include the following areas: (1) neutrality and impartiality; (2) conflicts of interest; (3) confidentiality, privacy, and security; (4) competence and quality; (5) fair process; (6) transparency; (7) technological competence; (8) accessibility. The SquareTrade Standards reflect a full disclosure of significant elements. See http://www.squaretrade.com/cnt/jsp/lgl/standards_med.jsp (last visited Oct. 25, 2001).
116. These choice of law rules, in the absence of designation by the parties, might look similar in form but not content to the ones drafted by the American Law Institute ("ALI") in Section 6 in connection with domestic litigation primarily in the Complex Litigation Project. See ALI Complex Litigation Project §§ 6.01-03 (1993). Another example are those in the Uniform Computer Information Transactions Act ("UCITA") as approved by the National Conference of Commissioners on Uniform State Law ("NCCUSL") in July 1999. See Uniform Computer Information Transactions Act, National Conference of Commisioners on Uniform State Laws § 109 (2000), Choice of Law (establishing default rules in the absence of party choice and recognizing consumer mandatory law); see also id. § 110, Contractual Choice of Forum (providing for party selection "unless the choice is unreasonable and unjust"). See generally Amelia Boss, The Jurisdiction of Commercial Law: Party Autonomy in Choosing Applicable Law and Forum Under Proposed Revisions to the Uniform Commercial Code, 32 Int'l Law. 1067 (1998).
117. Even when there is regulation, there is no coordinated enforcement in multiple states since legal practice is regulated along state lines but transactions involving on-line dispute resolution are more likely to be cross-border or even international. The international component is often supplied by underlying transactions in cyberspace that implicate multiple jurisdictions.
118. "Although the organized bar has always justified its campaign against lay competitors in terms of public protection, the historical record suggests that other, somewhat less altruistic forces have been at work." Rhode, supra note 6, at 209. See generally Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995).
119. See infra text accompanying note 109.
120. ODR still has the potential to reduce transaction costs and speed decisions. ODR may also provide an alternative to congested or undeveloped court and out-of-court systems in individual countries, especially in emerging economies.
121. These awards might be enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, depending on the existence of a written agreement and the interpretation of "writing" by the place of enforcement. See Convention on the Recognition of Enforcement of Foreign Arbitral Awards, June 10, 1958, 84 stat. 692, 330 U.N.T.S. 3, http://www.adr.org/rule/ international/990819ae.html (last visited Oct. 24, 2001); see also supra note 40.
122. See supra note 25.
123. See generally Henry H. Perritt, Jr., Cyberspace Self-Government: Town Hall Democracy or Rediscovered Royalism?, 12 Berkeley Tech. L.J. 413 (1997).
124. The conflicts of law implications of regulating transactions in cyberspace of any sort can be seen easily from the recent high profile Yahoo.com case brought in the French courts to enforce French laws. See Interim Court Order, Nov. 20, 2000, League Against Racism and Antisemitism - LJCRA v. Yahoo!Inc., No. RG:00/05308, (Tribunal de Grande Instance de Paris) (County Court of Paris), www.cdt.org/ speech/international/001120yahoofrance.pdf. The initial injunction was issued on May 22, 2000. The complaint in the U.S. litigation, Yahoo! Inc. v. La Ligue Contre Racisme et L'Antisemetisme, C00-21275 PVT ADR (N.B. Cal. 2000) is available at www.cdt.org/speech/international/001221yahoocomplaint.pdf. The case is also discussed in Mylene Mangalindan & Kevin Delaney, Yahoo! Ordered to Bar the French From Nazi Items, Wall St. J., Nov. 21, 2000, at B1. See Louise Ellen Teitz, Parallel Proceedings: Moving Into Cyberspace, 35 Int'l Law 491 (2001).
125. An example of the use of commercial mediation and arbitration in the business context can be seen in the North American Free Trade Agreement ("NAFTA") which established an Advisory Committee on Private Dispute Resolution, the "NAFTA 2022 Committee," pursuant to NAFTA article 2022 paragraph 4 of Chapter 20. The Committee was charged with reporting and providing recommendations "on general issues referred to it . . . respecting the availability, use and effectiveness of arbitration and other procedures for the resolution of such disputes in the free trade area." The Committee has been studying the use of on-line dispute resolution mechanisms to resolve these commercial disputes, in conjunction with the U.S.-Mexico Conflict Resolution Center ("CRC"), a non-profit organization located on the main campus of New Mexico State University ("NMSU") in Las Cruces, New Mexico. The CRC was created as the result of a U.S. Congressional initiative to provide education, training and services in the area of ADR for entities engaged in private commercial trade between the U.S. and Mexico. The C.R.C. is headed by Professor Nancy A. Oretskin and Dr. Luis Miguel Diaz. See Commercial Mediation and Arbitration in the NAFTA Countries (Luis M. Diaz & Nancy A. Oretskin eds., 1999).
126. See Elizabeth G. Thornburg, Going Private: Technology, Due Process, and Internet Dispute Resolution, 34 U.C. Davis L. Rev. 151 (2000) (arguing that more is needed than industry self-regulation of the privatization of dispute resolution).
127. See http://www.clicknsettle.com (last visited Oct. 24, 2001); http://www.cybersettle.com (last visited Nov. 1, 2001); http://www.settleonline.com (last visited Oct. 24, 2001); http://ussettle.com (last visited Oct. 25, 2001).
128. See supra notes 7 and 87 and accompanying text.
129. Although there is no national licensing or certification for mediators, several states, such as Florida and Virginia, have chosen to regulate mediators or neutrals in some way, either in terms of education, experience, or training. For a recent study and survey by the ABA on state efforts to certify or approve alternate dispute resolution providers (encompassing mediators and arbitrators), see ABA, State and Local Bar Alternative Dispute Resolution Survey (2001), http://www.abanet.org/ statelocal/summaryreport.pdf. There appear to be more efforts underway in the area of family and divorce mediation where there is a national academy trying to establish standards for certification. In addition, federal courts have also established certain standards for those who engage in court-annexed mediation or arbitration.
130. See supra notes 11-20 and accompanying text.
131. See supra note 58.
132. 15 U.S.C. § 45 (1997). Section 1 provides: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."
133. See supra text accompanying notes 45-52.
134. While the trustmark could also be used by e-tailers to encourage consumers that the ODR provided is of a certain quality, its primary focus is on the users of ODR who may or may not be the direct purchasers of those services.
135. The technological training is specifically included in the SquareTrade Standards of Practice for Online Dispute Resolution. The Technological Competence section provides that: "A SquareTrade mediator or arbitrator will have the technological competence to conduct the dispute resolution process effectively and efficiently . . . ." SquareTrade Standards of Practice for Online Dispute Resolution, at http://www.squaretrade.com/cnt/jsp/lgl/standards_med.jsp (last visited Oct. 25, 2001).
136. This could also include choice of law and forum clauses in anticipation of any dispute with the ODR provider.
137. For an example of a full disclosure of standards adhered to by an ODR provider, see SquareTrade Standards of Practice for Online Dispute Resolution, at www.squaretrade.com/cnt/jsp/lgl/standards_med.jsp (last visited Oct. 25, 2001). See also Legal Websites Guidelines, supra note 7.
138. The FTC has been doing this for both buyers and sellers in electronic commerce by preparing brochures and educational information for both groups on what to expect. See http://www.ftc.gov (last visited Oct. 24, 2001).
139. See supra note 32 and accompanying text.
140. See supra note 95.