On 9 January 2016, the European Commission, on based on the requirements of the EU Regulation no. 524/2013 launched a new alternative for online dispute resolution platform (ODR platform). The alternative dispute resolution bodies (ADR entities) notified by the Member States have been able to credit immediately, while consumers and professionals have recently accessed, and that is from February 15, 2016.
The platform will allow to solve online dispute (also cross-border) in a single click, without the need for lengthy and costly legal proceedings. Consumers and professionals can submit a complaint online, and ADR entities will have to arbitrate between the parties to resolve the issue. The e-commerce sites must indicate obligatorily the link to the procedure.
The new platform is a further means of strengthening confidence in e-commerce, making an important contribution to the EU’s strategy for the digital single market.
In fact the main objective of the EU Regulation no. 524/2013 was precisely to establish an EU-wide ODR platform.
The ODR platform is nothing more than an interactive website offering a single point of access for consumers and traders seeking to resolve disputes arising in the context of court from online operations. The ODR platform provides general information about the court settlement of contractual disputes between traders and consumers arising from contracts of sale or online service contracts. It allows consumers and traders to submit complaints by filling in an electronic form available in all official languages of the Union institutions and to enclose the relevant documents. The platform transmits to the competent body ADR complaints.
Ultimately, then, the ODR platform shall have the following functions:
a) make available an electronic complaint form which can be filled by the applicant;
b) inform the defendant of the claim;
c) identify the body or the competent ADR entities and transmit the complaint to the ADR entity which the parties have agreed to use;
d) to propose an electronic case management tool which enables the parties and the ADR entity to conduct the online dispute resolution procedure via the ODR platform ;
e) providing the parties and the ADR the translation of the information that is necessary for the resolution of the dispute and which are exchanged via the ODR platform;
f) to provide an electronic form by means of which ADR entities shall transmit the necessary information;
g) to provide a feedback (feedback system ) that allows the parties to express their views on the functioning of the ODR platform and on the ADR entity which has handled their dispute.
in addition, the platform must make public:
- general information on ADR as a means of extra-judicial dispute resolution;
- information on ADR entities included in a list in accordance with Article 20, paragraph 2 of Directive 2013/11 / EU which are competent to deal with disputes covered by this Regulation;
- an online guide on how to submit complaints via the ODR platform;
- the information, including the contact details of the ODR contact points designated by Member States in accordance with Article 7, paragraph 1, of the Regulation no. 524/2013;
- the statistical data on the results of disputes submitted to ADR entities via the ODR platform.
recalls, in this regard, that the European Parliament and the Council also issued Directive no. 2013/11 / EU on alternative dispute resolution for consumer disputes has been implemented in Italy by Legislative Decree. N. 130/2015. The main objective of the Directive is to contribute, by achieving a high level of consumer protection, to the proper functioning of the internal market by ensuring that consumers can, on a voluntary basis, to make a complaint against professionals before organizations providing independent procedures, impartial, transparent, effective, quick and fair alternative dispute resolution.
As the term ADR is an acronym derived from the English language is known the meaning of which is Alternative Dispute Resolution : Alternative Dispute Resolution. Striking is the distinctive feature of ADR: their alternative nature than the ordinary system of dispute resolution, to put peaceful remedy, as well as the legal remedy, in lawsuits, in particular, civil and commercial.
The acronym ADR , applied to the resolution of disputes on line , he has undergone, in US practice, a transformation in the ODR: Online dispute resolution . It was given, so, autonomous naming the implementation of alternative systems for settling disputes arising in electronic commerce.
And that, by virtue of the significant changes they are undergoing the ADR procedures, when applied in a context telematic. In fact, the speed with which the transactions are effected on line has imposed a greater rapidity of alternative procedures for settling disputes over traditional ADR. Where it is known that the contractors of electronic transaction are domiciled in different places, if not, indeed, in two different states. This entails an opportunity, if not the necessity, of a procedure for ODR that has in it characteristics, both substantial and procedural, which would go beyond the rules of a single State, while respecting the rules, unwritten, concerning justice of the specific case.
the ODR procedures, despite their particularities, that differentiate them from one another, are, however, common characteristics.
first, l ‘ ODR must have low costs, particularly in light of the fact that the value of the disputes that may arise from the purchase and sale contracts on the Net, it is usually very modest. The ODR applied to e-commerce must be easy to access as well as free access: the Internet user must have the possibility to refer the matter, in full freedom, an organism that can settle a dispute relating to contractual relationships arising on the Internet.
second, the ODR procedures are characterized dall’asincronicità. There are, in other words, major technical challenges to make conference calls that can address the lack of mutual visibility of parts.
Third, the ODR procedures are procedures managed by special bodies set ad hoc . It follows, therefore, the need to set out the common features of different online ADR providers. A first portion can be referred to the degree of automation of procedures. “The more a procedure is automated and controlled by a software let alone the human element influence the unfolding and, above all, the outcome of the settlement procedure. The arbitration, to the state of the art, for its structure which links him to the ordinary judgment is ill attaglia to a complete automation of this, however, is not, of necessity, a negative element “. A second common trait is related to the difference in telematics, including disputes that have a final outcome on line and controversies that have a final outcome off line. “There, mixed procedures as some incumbent whom the examination of witnesses or the first hearing of the parties takes place visually and nothing prevents the arbitration award is drafted in the usual manner, exceeding, thus, the issues regarding the feasibility of the judged. ” Another common trait is made from independence of online ADR providers: the possible link that the body could have with powerful economic and financial realities, could undermine, at root, the credibility of the same and the final ruling. Corollary of the principle of independence is the principle of transparency: the rules on the ODR procedure must be set out clearly, without giving rise to a number of the possible interpretations.
Among the ODR procedures of greater importance born from the US experience we have the Blind negotiation and Peer Pressure.
the Blind negotiation is a process that takes place exclusively in the form on line .
interesting presents his birth. In 1996 Charles Brofman and James Burchetta, called to defend opposing positions in a lawsuit for damages, they decided to write down on two sheets of paper the actual amount of money they were willing to pay in order to resolve the dispute. Delivered, therefore, the two sheets to a third party deciding to settle if the difference between the two amounts was found to less than a thousand dollars. And so it happened. In 1998, the two lawyers created, the web , an original dispute settlement system, fully managed by a software that runs the procedure, active around the clock.
the person who believes that he is entitled to compensation in cash sends a request to reach the settlement of the dispute settlement. The ODR Provider communicates the existence of the request to the other party if that party accepts it, starts the procedure. Is realized, as well, a continuous sequence of monetary offers of the parties, never ameliorative below certain percentages: they became aware, in real time, the arrival of the offer of the other party, but not of the related amount. It will continue as long as, reached the spread between supply and related counter – predetermined range on the basis of the contractual agreements, you make a split off , a unit that determines the amount of the transaction for the exact midpoint between the parties’ offerings. Each calculation is performed by the software , which shall notify the parties, aseptically, if the agreement was reached and for what amount of money.
This procedure has had, in the United States , a surprising development, and Cybersettle.com has become, in the field, a fundamental institution for individual consumers, businesses, public authorities.
the Peer Pressure is a method of ODR which is unprecedented in the evolution of traditional ADR.
The expression, literally translated “ peer pressure ‘is linked to a sociological theory which identifies, in certain social groups composed of persons of the same age group, the tendency all’autocorrezione for adjusting behaviors maintained by other individuals is considered a model.
the process, in short, can be described as follows.
the consumer who has reason to complain against a seller or a service provider, within the site fill out a form Internet ODR provider , describing the case and the related claims. In this phase, the operator does not perform the procedure on the merits, no verification: is limited to forward the request to the person against whom the complaint was addressed.
At this point we can have three possibilities.
The denounced might not recognize any value to the complaint. The file of the dispute is then published on the web , so that everyone is free to make his views known.
The same fate if the agreement between the parties is not reached.
in case of success, however, the company is asked if he wants to make it public through the dissemination of the negotiation on the Internet, with a view to a commercial operator’s qualification with a view to customer care.
in addition, the peer pressure can also be beneficial to the parties, to learn about the possible impact of their application on a jury. The use of mock jury , typical of the mini trial , in fact, has always been reserved, given the high cost involved in organizing a simulated process, excessive litigation economic value. Through the publication of the dispute on the Internet, the virtual community is the “ puppet jury ‘, which enables traders to assess the opportunity to undertake a real judgment.
The editorial noted:
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(American Lawyer, March 4, 2016. Article by Michele Iaselli )
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