Online arbitration: A vehicle for dispute resolution in Electronic commerce

Posted by M. Saleh Jaberi on March 06, 2011

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Jeopardize of contradiction, which is the main principle in commercial arbitration,is another result of different accessibility to the different techs. Therefore, arbitrators by decent expertise and education can choose the best device according the conditions of disputes so that they can diminish deficiency of current techs.

4. Arbitrators’discussion and issuing awards: since there isn’t any hint in arbitration codes of most countries about form of arbitrators’ discussion, to reach acomplete online arbitration, arbitrators’ discussion can be done online when they aren’t in one place.Using of telephone, fax or video conference is a common method in this stage.

Few institutions providing online arbitration set time limits for awards which are variable from 4 hours to 30 days. After ending discussion and issuing an award, parties are informed about that award. This notice can be sent to parties by cryptographic email, or if the operation of an arbitral institution is a web-based, award will be putting on the web site for a specific time in a way that it will be accessible just for parties so as to safeguard the confidentiality of the award. Some arbitration codes like the Code of ICC, in addition to the publication of the award on the website of the case at hand within 60 days, make a hard copy of the electronic award necessary for more security.

B:security in the online arbitration proceeding. When the online arbitration has emerged, the experts of this context have concentrated on the functional capability of available devices in the online arbitration. However, it seems that this concentrate is changing and security of these devices becomes more prominent. Even some believe that the security issue is the biggest pit in this field. Lack of security not only weaken the confidentiality, which is one of the main principle of arbitration, but also makes people reluctant for using this kind of dispute resolution. To overcome this problem, few suggestions have posed such as using electronic signature,cryptographic emails and using local networks instead of internet. International Chamber of Commerce has designed a management system for more security in the online arbitration in 2001, entitled “ Netcase”. In this system, accessibility of documents and arbitration proceeding is just possible for parties and members of arbitral institution. At the same time, the accessibility of parties and members is different with each other based on their positions.

Although security systems have improved, still a comprehensive solution doesn’t exist. As what “T. Schultz”said: emails and electronic communication have as the same security as postcards!. It may claim that there is not a complete security in all kinds of arbitrations and this is true about online arbitration as well.Nevertheless, some believe that people who refer to this kind of arbitration expect more security than conventional ones. However, this fact that using lots of security systems makes some problems like increasing expenses and complexity of the procedure is undeniable.

It seems that proper education for all people who relate to the online arbitration such as arbitrators, attorneys and even judges and also a decent accordance among various branches of law and information technology can reduce these problems.

Chapter III: Seat of Arbitration Seat of arbitration is important from various aspects. According one opinion, seat of arbitration determines the applicable law in arbitrations. On the other side, in many arbitration codes, supervision on awards is allocated to courts of arbitration seat, and base on New York Convention, recognition and enforcement of the award may be refused if the award has been set aside by a competent authority of the country in which that award was made.

In the online arbitration, the obvious multiple location is an obstacle to determinethe place of arbitration. In this kind of arbitration, not only parties may present in different countries, but also arbitrators may attend and discuss from different countries. On the other hand, in comparative law there is a tendency not to use the operator's electronic presence or technical equipment to determine location. The determination of the place of arbitration must therefore rest on legal criteria. This problem led some scholars to conclude that “virtual arbitration has no sits”, or at least “no identifiable seat of arbitration”. However, modern views about the determination of arbitration place have mostly solved this problem.

Nowadays there isn’t any trend to determine location of arbitration base on “where the arbitration took place” or “where the award was made or “the place of the situation of the establishment that has made the arbitration agreement” But based on the new codes, seat of arbitration is mostly excluded from its geographical notion and became selective. The seat is now defined as the place agreed to be the seat by the parties or by the arbitrators or an arbitral institution if such a power is nominated by the parties.

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