Online dispute resolution : a legislative proposal to facilitate ODR in Malta

Abstract

Dispute resolution has evolved over time, from the Praetor Urbanis moderation during the Roman era, to ODR during the digital era. Although not as such ingrained within most judicial systems, many commentators are agreeing that ODR is indeed the way forward, since it provides a fast and efficient dispute resolution facility, which is as quick as purchasing goods or services online. ODR is relatively unregulated, and it mostly developed as a private initiative ? in fact it started off in 1995 in Philadelphia, with the name of ?Virtual Magistrate?. Today both the UN, through the UNCITRAL draft model rules on ODR, as well as the EU, through the proposed regulation on ODR for consumer disputes, acknowledged the importance of introducing legislation vis-à-vis ODR and they are currently conducting the necessary legislative preparations to introduce their respective guiding rules. Although some authors suggest that ODR is limitedly a dispute resolution affair, others give it an enhanced definition as to include dispute avoidance mechanisms. Whereas dispute resolution, includes online arbitration proceedings, online mediation, and many other ODR techniques, dispute avoidance, which precedes the dispute, includes both legislative mechanisms such as the cooling-off periods, and non-legislative mechanisms such as MGM. The discussion and analysis conducted in the first five chapters, made it to possible to discover certain limitations of ODR as well as the lack of adequate legislative instruments to facilitate ODR in Malta. True to the title of this dissertation, chapter 6 delves into proposing the introduction of a subsidiary legislation regulating online arbitral proceedings, which is thereafter supplemented with amendments within the Arbitration Act as well as the COCP. One may claim that in terms of facilitating ODR in Malta, the proposed legislation draws much on tried and tested approaches in other jurisdictions. The major novelty however in the proposed legislation relates to the endemic problem in the enforcement of the online arbitral awards. Through a specific amendment within the COCP, a legislative procedure is thereby being suggested, thus ensuring that the award will be converted into an executive title ? and hence capable of being executed.