Civil litigation today has become to expensive for most people to become involved in. For this reason many disputes are left unresolved at the expense of justice. That being the case, the unscrupulous would naturally exploit the situation, well knowing that their victims are financially incapable of exercising whatever legal remedies they might have. On the other hand – and if the law does not protect the innocent – taking the law into your own hands would be the only option, which inevitably will lead to chaos.
There remains however one other alternative generally referred to as alternative dispute resolution: conciliation, mediation and arbitration. These methods of resolving disputes are most probably the way forward.
How does arbitration work?
Two disputing parties may agree to appoint a third person to help them resolve a dispute. This basic agreement to resolve, is an essential requirement. This third person may be a legal expert although it is not essential. In fact, in some cases it is better to appoint someone with specific knowledge of the field from which the dispute arises.
From thereon the parties can agree on most of the aspects in regard to procedure and evidence to ensure a swift and cheap settlement. You may for instance agree that the arbitration process will take place over the Internet. With one party living in Tokyo and the other in Argentina with the agreed arbitrator based in Iceland, your dispute may be resolved as if you were all together in one place.
A decision by an arbitrator generally final and has the same effect as a judgment by a court of law. Although it may be required that this decision first be made an order of a court of law, it can be executed in precisely the same manner.
It is possible to include the aribitration stipulation in an agreement of sale that, whatever dispute may arise from that agreement, shall be resolved by way of arbitration. In e-commerce transactions, where the parties are spread all over the world, I think it is rather unfair towards customers to insist that only the court within whose jurisdiction the trader resides or does business, should have locus standi over disputes that arise.
As an example I could think of nothing more innovative than, say a web music/DVD/book company, appointing a neutral and independent mediator/arbitrator whom a customer can contact when he/she is not satisfied with the product, delivery or whatever. Without it the customer relies exclusively on good faith and the hope that the trader will be fair and reasonable towards him/her if something goes wrong. With this approach nothing is done in good faith but on sound business principles. Surely, when I’m offered the choice, I will choose in favour of the trader who guarantees that my legal rights and remedies will remain available to me notwithstanding him doing business from the Amazon or wherever.
J.C.Grobler.
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