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cross-border internet dispute resolution using none tocompose none for web,windows applicationhow to create applications with barcode resources and the repeat pl none none ayer effect. In order to simplify the extremely complicated concept of power paradigms, a presumption has been introduced that power imbalances are likely to exist for Internet disputes in the relationship between a corporate entity and an individual. This chapter has explained that the discussion is not limited to E-commerce disputes, but that a wide approach is taken that includes all disputes arising from interactions mediated by the Internet, including disputes about domain names.

It has been acknowledged that some B2C E-commerce disputes (a subset of Internet disputes relevant to this book) can be solved by intervention of payment service providers. In summary, the main focus of the book is on cross-border Internet disputes where: (i) one party is a corporate entity and the other party is an individual, and (ii) there is no access to the courts, due to costs. However, the scope of this book also encompasses disputes between individuals where there is no access to the courts for the same reason.

This chapter has also brie y explained that cross-border litigation is complicated and expensive and will therefore not be suitable for many Internet disputes. ADR may provide the way forward, and the next chapter will look at ADR and its signi cance..

GS1-8 4 ADR and applicable law Those, who in quarrels inter none for none pose, Must often wipe a bloody nose. (John Gay, 1685 1732). 4.1 Introduction The function of this chapter none for none is to explain the meaning of alternative dispute resolution (ADR). This serves as background to the discussion of ODR in the following chapter. This chapter concentrates on the two main forms of ADR (mediation and arbitration), discussing their main characteristics, function and limitations.

In doing so, this chapter explains why only arbitration is to be regarded as a true alternative to litigation, and why mediation is, in its nature, a sort of lter for disputes, a complementary rather than independent form of dispute resolution. One way to deal with disputes is through adjudication.1 The essence of adjudication is to have a neutral third person decide whether the second person should give the disputed something to the rst person or do what the rst person demands.

The adjudicator thereby de nes the rst person s legal rights and entitlements.2 Alternatively, the rst person may want to bargain with the other person. Bargaining by its very nature involves the rst person persuading the second person that it is in his or her interests to give to the rst person what they wish to obtain, or to do what the rst person wants him or her to do.

3. Adjudication includes litiga tion, arbitration and ombudsmen. The term adjudication is used in this book as an overarching term to mean a form of dispute resolution involving a third party making a decision binding on the parties. Lon Fuller argues that it is the very essence of adjudication that it ultimately de nes rights and entitlements; see Fuller, The Forms and Limits of Adjudication , 369.

There are different strategies for negotiation, for example strategies focusing on positions and strategies focusing on interests. The Harvard Negotiation Project has developed a. cross-border internet dispute resolution Between the opposite ends of the spectrum of formality (namely bargaining and litigation) lies a range of dispute resolution mechanisms that involve a neutral third party but which are kept outside the courts. These mechanisms are called alternative dispute resolution (ADR)..

4.2 ADR ADR is a collective expressi on for all dispute resolution mechanisms that interpose a neutral third party but which are outside the courts, and is a synonym for extra-judicial or out-of-court dispute resolution.4 In this book the term includes other adjudicative techniques such as arbitration.5 Figure 4 illustrates the relationship between different forms of dispute resolution.

The adjective alternative in ADR connotes that ADR was conceived to be an alternative to the state court system. In the 1970s and 1980s, the ADR movement (consisting, to a large part, of academic scholars) advocated the increasing use of ADR and conceptualised ADR as a distinct subject in response to de ciencies in the of cial court system, particularly in the US.6 However, it should be pointed out that the mechanisms of arbitration and mediation had been used long before in various contexts.

7. negotiation method, focusing none none on interests, called principled negotiation , a method from which mediation has greatly bene ted; see below. G. Kaufmann-Kohler and T.

Schultz, Online Dispute Resolution: Challenges for Contemporary Justice (The Hague: Kluwer Law International, 2004), 6; C. Rule, Online Dispute Resolution for Business (San Francisco, Calif.: Jossey-Bass, 2002), 13; Brown and Marriott, ADR Principles and Practice, 12; H.

Genn, The Central London County Court Pilot Mediation Scheme Evaluation Report (London: Lord Chancellor s Department, July 1998), para. 1.1.

1. Some authors exclude all adjudication/arbitration from the scope of ADR: see N. Vidmar, Procedural Justice and Alternative Dispute Resolution , in K.

R hl and S. Machura (eds.), o Procedural Justice (Aldershot: Ashgate, 1997) 121 36, 121; K.

Mackie, D. Miles, W. Marsh and T.

Allen, The ADR Practice Guide (London: Butterworths, 2000), 9. Kaufmann-Kohler and Schultz, Online Dispute Resolution, 6; Rule, Online Dispute Resolution for Business, 15. Roger Fisher and William Ury rst published their famous book, Getting to Yes: Negotiating an Agreement Without Giving In, 2nd edn (London: Random House, 1992), in 1974; see also Laura Nader s No Access to Law: Alternatives to the American Legal System (New York, NY: Academic Press, 1980); C.

Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem-Solving (1983 1984) 31 UCLA Law Review 754 842. Many authors cite arbitration between merchants in Mediaeval Europe as the origin of contemporary arbitration, but arbitration was also known in Roman times. The rst English arbitration statute dates from 1698, and one of the oldest arbitration institutions was the LCIA, founded in 1892; see for more detail, A.

Redfern and M. Hunter, Law and Practice of International Commercial Arbitration, 4th edn (London: Sweet & Maxwell, 2004), 3 6. Mediation, as an informal dispute resolution process, has, in one form or another, been practised in all societies.

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