El Marco Legal Internacional que regula el Comerio Electrónico y la Mediación en Línea (artículo en inglés por Dr. Jur. Ihab Amro)

 

A continuación publicamos un artículo en inglés del Dr. Jur. Ihab Amro sobre los marcos regultarios internacionales de Comercio Electrónico y la Mediación en Línea. Ihab es profesor de Derecho Privado, abogado y árbitro. Ha colaborado en numerosas publicaciones internacionales en temas de derecho y actualmente se encuentra trabajando en una investigación post-doctoral sobre Resolución de Disputas en Línea en la Universidad Europea Central en Budapest.

 

The International Legal Framework Regulating Electronic Commerce and Online Mediation

 

By Dr. Jur. Ihab Amro (Assistant Professor of Private Law and a practicing lawyer and arbitrator; PhD. Athens, Greece).

 

This post deals in detail with the international legal framework regulating both electronic commerce (‘e-commerce’) and online mediation (‘e-mediation’), considering that both online mediation, as part of Online Dispute Resolution Techniques (‘ODR’), and electronic commerce, as part of the digital economy, are connected in practice. This is attributed to the fact that e-mediation is mainly used for resolution of disputes arising out of, or in connection with, e-commerce transactions.

 

This international legal framework includes both hard laws and soft laws, i.e. the EU Regulation on Online Dispute Resolution for Consumer Disputes of 2013, and the Technical Notes on Online Dispute Resolution of 2016 of the United Nations Commission on International Trade Law (‘UNCITRAL’), as well as The UNCITRAL Model Laws on both electronic commerce and electronic signatures.

This article shall exclude the United Nations Convention on the Use of Electronic Communications in International Contracts (‘ECC’) from the scope of research because of the very limited number of states that have acceded to this Convention so far.

 

On the one hand, it should be observed that the international legal framework “instruments” regulating e-commerce transactions includes, inter alia, the UNCITRAL Model Law on Electronic Commerce of 1996, and the UNCITRAL Model Law on Electronic Signatures of 2001. Both instruments are mainly designed for B2B e-commerce transactions.

In addition to the above instruments regulating electronic commerce, there are other resources facilitating e-commerce, including electronic communications, such as the ICC Incoterms of 2010, and the ICC eTerms of 2004. Both the ICC Incoterms and the ICC eTerms are widely used in e-contracting between businesses

In this, the UNCITRAL Model Law on Electronic Commerce of 1996 is deemed the main pillar in the edifice of electronic commerce transactions because it adopts a modern legal regime for facilitating e-commerce transactions. Also, the Model Law on Electronic Commerce constitutes international legal machinery for using online mediation as part of ODR techniques in e-commerce disputes.

Apart from that, the UNCITRAL Model Law on Electronic Signatures of 2001 provides a legal effect to documents or messages transmitted and signed over the Internet. It also provides e-signatures a legal effect equivalent to handwritten signatures in national legislations. In practice, this Model Law aims to give digital signatures the same evidential value given to handwritten signatures before national courts. Both the Model Law on Electronic Commerce and the Model Law on Electronic Signatures include provisions that facilitate electronic contracting. Even so, one may argue that the world has changed and digitalisation has recently entered a new stage that does not find itself reflected in the existing UNCITRAL texts regulating e-commerce and e-communications so far, including both the Model Law on Electronic Commerce, and the Model Law on Electronic Signatures. This new stage of digitalisation may include smart contracts, Internet of Things, virtual currencies, and Blockchain technologies. On that basis, there might be a need for the amendment of both model laws in order to meet the above new challenges and developments.

On this matter, it is important to note that many common law and civil law countries have enacted laws that deal with e-commerce, and with e-signatures. These laws are based on the UNCITRAL Model Law on Electronic Commerce of 1996, and on the UNCITRAL Model Law on Electronic Signatures of 2001.

 

On the other hand, the UNCITRAL has recently posted Technical Notes on online dispute resolution for cross-border electronic commerce transactions. These Notes have dealt with online mediation as an ODR technique for resolution of cross-border e-commerce disputes. However, they have not dealt with online arbitration expressly. Rather, they have referred to a third stage in case of failing both online negotiation and online mediation. Also, they have not dealt with the enforceability of mediation settlement agreements. Apart from that, these Notes are only designed for institutional dispute resolution process conducted online, but not for an ad hoc dispute resolution process.

In addition, the European Parliament and the Council of Europe have promulgated a new regulation on online dispute resolution for consumer disputes. This regulation No.524/2013 of 21 May 2013 represents the institutionalisation of consumer ODR in the European Union. This regulation has established a wide platform called the“ODR platform”, which allows consumers who encounter problems when they shop online to submit a complaint in the language of their choice. Even so, this plaform faces some challenges in practice, which may hinder resolution of B2C e-commerce disputes through online mediation.

Finally, and possibly most importantly, it should be observed that some international dispute resolution centres (providers) conduct the mediation process online. To give an example, the Chamber of Arbitration of Milan, Camera Arbitrale di Milano, administers e-mediation under its own ResolviOnline Rules of 2015. Under these online rules, the Camera Arbitrale di Milano provides some online dispute resolution services, particularly e-mediation, for settling both domestic and international disputes arising out of commercial contracts.

 

*(You can find a more detailed analysis of these issues in Ihab Amro’s article, The Slovenian Arbitration Review, Slovenska arbitražna praksa (Ljubljana), November 2017, at pp. 19-33.

 

 

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