The Hague convention was drawn on the same lines as the Brussels 1 Regulation. It is remarkably similar to Brussels 1 Regulation, for it states guidelines on jurisdictional agreements. This includes the application of general and specifics on jurisdiction agreements which are closely identical to The Brussels 1 Regulation[1].  Courts are reluctant to state when another court acts improperly based on political, religious, racial or regional grounds, unless there is an obvious derogation from the requirement of the jurisdiction. Instances where a claimant is suspected to have had an unfair trial regardless of the jurisdiction, the expected effect would be to have a fair trial, possibly in the same jurisdiction or another jurisdiction mutually agreed by the concerned parties subject to the provisions of the law[2]

The Hague convention does provide for exclusivity of jurisdictional agreements, which presupposes there must be two or more parties for a valid jurisdiction to be effective[3].  Its provision on jurisdictional agreement is based on the standing that there would be a recognition and enforcement of a judgment in an exclusive choice-of-court agreement, and this will have the recognition and enforcement in other member states since there are no grounds for the refusal as required in the convention.[4]

The Hague Convention is a mechanism provided to ease obtaining evidence abroad. The challenges in resolving disputes through jurisdictional agreements are evident in the fact, that certain disputes are exclusively reserved for the jurisdiction of national courts and not arbitration tribunals.  From all the evaluations it is evident there is no uniform international law in the enforcement of foreign judgments in commercial litigation. However, there is neither a universal law in the enforcement of foreign judgments in alternative dispute resolution (ADR), and online dispute resolution (ODR), fortunately, it guarantees accessibility, simplicity and effectiveness in its usage.

Interestingly, over a 100 million disputes are filed online each year around the world. This numbers have been on the increase and recent statistics shows the increase will continue. As our society becomes increasingly wired, internet users expect maximum utilisation of technology seen in various spheres of life. Also an expectation that they will use the latest information and communication technologies to get their issues resolved as quickly and efficiently, as possible. Unfortunately the default channel for resolving most problems, which is normally the use of litigation through the courts, are unable to deal with online, high volume, low value cases [5].

Governments and international institutions through their research have concluded that Online Dispute Resolution (ODR) is the best option for providing fair redress for these online cases. Several (including UNCITRAL and the European Union) have recently announced plans to launch cross-border ODR schemes. Although, there has been a couple of challenges on an emerging concept many crucial details are yet to be addressed: How can fairness be ensured? Who should act as the decision makers? Should outcomes be binding? How can these systems benefit the developing world? Fortunately, some of these challenges are being dealt with through governmental legislations.

In the European Union, Article 17 of the E-Commerce Directive provides in online dispute resolution ‘member states shall ensure that,in the event of disagreement between an information society service provider and the recipient of the service, their legislation does not hamper the use of out-of-court schemes, available under national law, for dispute settlement, including appropriate electronic means’.

The attraction of ODR is not just its accessibility in the wired society we live in. Rather, it is the  convenience and effectiveness it offers. Since it is something that can be incorporated into agreements or contracts in the bid to build trust among users. Worldwide confidence in ODR usage is on the increase. Most importantly the interest shown and seen in developing countries in the use of ODR in the resolution of disputes has been phenomenal. The maintenance of  trust is an extremely essential requirement in establishing a universal online dispute resolution platform.

What concerns do you have in the use of online dispute resolution(ODR) in the resolution of disputes?

[1] International Commercial Litigation-Trevor Hartley P.202

[2] ‘The Eleftheria’ High Court [1970] P.94

[3] Chapter 1 Article 3 The Hague Convention

[4] Chapter 2 Article 8 The Hague Convention

[ 5] Graham Ross, Modria Europe