ODR and the Administration of Justice An Asian Perspective Emeritus Professor Mary Hiscock Bond...

ODR and the ODR and the Administration of JusticeAdministration of Justice

An Asian PerspectiveAn Asian Perspective

Emeritus Professor Mary Emeritus Professor Mary HiscockHiscock

Bond UniversityBond University

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Fresh look at Online Dispute Fresh look at Online Dispute Resolution and Global E Resolution and Global E

CommerceCommerce

Opening SummaryOpening Summary

My perspective is from within AsiaMy perspective is from within Asia The priority is locally culturally The priority is locally culturally

appropriate systems for ODR cross-border appropriate systems for ODR cross-border consumer transactions rather than global consumer transactions rather than global solutionssolutions

FTAs may be vehicles for progressing FTAs may be vehicles for progressing discussions and developing the requisite discussions and developing the requisite infrastructureinfrastructure

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CommerceCommerce 33

Accepted ObjectivesAccepted Objectivesof ODRof ODR

Meeting Commercial Needs of Meeting Commercial Needs of DisputantsDisputants

Clarity and Finality of OutcomesClarity and Finality of Outcomes Limitation of Transaction CostsLimitation of Transaction Costs Upholding of public policyUpholding of public policy Satisfying broader societal needs Satisfying broader societal needs

and interestsand interests04/19/2304/19/23

Context Context

Focus is Consumer Protection in ODRFocus is Consumer Protection in ODR Broader context is Asian high user Broader context is Asian high user

nationsnations States have worked out national States have worked out national

interests in context of municipal lawinterests in context of municipal law Convergence of law on underlying rightsConvergence of law on underlying rights Based on foreign modelsBased on foreign models Less tailored development of processLess tailored development of process

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Emulation of European LawEmulation of European Law

AustraliaAustralia IndonesiaIndonesia JapanJapan KoreaKorea MalaysiaMalaysia The PhillipinesThe Phillipines TaiwanTaiwan ThailandThailand

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Access to Justice a State Access to Justice a State ResponsibilityResponsibility

Not sufficient to create rights and Not sufficient to create rights and obligationsobligations

Must also establish effective remediesMust also establish effective remedies Can be done directlyCan be done directly Or by facilitation and regulation of Or by facilitation and regulation of

private dispute resolution mechanismsprivate dispute resolution mechanisms Could be a function of established Could be a function of established

centrescentres

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Late C20th ComplicationsLate C20th Complications

Increased cross border consumer Increased cross border consumer transactionstransactions

Ambiguity of concept of placeAmbiguity of concept of place Conflicting pressures from WTO – Conflicting pressures from WTO –

liberalisation and market access v liberalisation and market access v consumer protectionconsumer protection

Increased use of cross border Increased use of cross border arbitrationarbitration

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Can national solutions just Can national solutions just cross borders and systems?cross borders and systems?

Asynchrony is the problemAsynchrony is the problem Assumption that greater use of Assumption that greater use of

online transactions = sophisticationonline transactions = sophistication Assumption that cultural and Assumption that cultural and

language barriers irrelevant language barriers irrelevant Assumption that national balance of Assumption that national balance of

interest still rulesinterest still rules

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Some FiguresSome Figures

Asia has 42% of world users of internetAsia has 42% of world users of internet Europe has 24%Europe has 24% The Americas have 25%The Americas have 25% Asia has 738 million users in Asia has 738 million users in

September 2009September 2009 Asia had 460 million in 2007 - butAsia had 460 million in 2007 - but Fastest growing area is the Middle EastFastest growing area is the Middle East

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Culture ClashCulture Clash

Survey by Siew & Leonard in 2008Survey by Siew & Leonard in 2008 Conclusion Conclusion ‘‘If English used to the exclusion of If English used to the exclusion of

other languages, an ODR model other languages, an ODR model based on linguistic functional and based on linguistic functional and cultural Western homogeneity is cultural Western homogeneity is itself a biased flawed and itself a biased flawed and ethnocentric process’ethnocentric process’

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Different cognitive Different cognitive processesprocesses

Chinese, Japanese, Korean and Arabic Chinese, Japanese, Korean and Arabic stimulate different hemisphere of stimulate different hemisphere of brainbrain

English is less visualEnglish is less visual Epistemology of thought differs Epistemology of thought differs

between Asians and non-Asiansbetween Asians and non-Asians Transplants of process between Transplants of process between

cultures are riskycultures are risky

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The good newsThe good news

Taking all that into account – andTaking all that into account – and That 85% of communication is non-That 85% of communication is non-

verbalverbal A solution could be found if technologyA solution could be found if technology Uses multiple processes that are Uses multiple processes that are

“culturally smart” and“culturally smart” and Adapts to each user and each concept Adapts to each user and each concept

of a disputeof a dispute

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HOW TO PROGRESSHOW TO PROGRESS

Co-operative undertakings can be Co-operative undertakings can be incorporated in bilateral and regional incorporated in bilateral and regional free trade agreementsfree trade agreements

ASEANANZ-FTA 2009 & APEC MOUASEANANZ-FTA 2009 & APEC MOU ASLI Principles of Asian Consumer LawASLI Principles of Asian Consumer Law ASEAN Regional Cross-Border Small ASEAN Regional Cross-Border Small

Claims ProcedureClaims Procedure

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A global solution A global solution

This must develop incrementallyThis must develop incrementally Supported by science and technologySupported by science and technology And by international legal frameworkAnd by international legal framework Cultures have their own rhythm of changeCultures have their own rhythm of change Must be a consultative and mutual Must be a consultative and mutual

processprocess It will not necessarily nor desirably be It will not necessarily nor desirably be

driven by Western institutionsdriven by Western institutions

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ODR and the Administration of Justice An Asian Perspective Emeritus Professor Mary Hiscock Bond...

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