By Abiola Inniss LLB, LLM, ACIArb
As the Caribbean region struggles to find its own space in the world of virtual business transactions, the issues of transparency, efficiency and dispute resolution have become major difficulties in the development of international business relations and the growth of the region as a whole.
The example of South East Asia where significant effort has been dedicated to the development of technological and other resources and where, in the aftermath of war and disaster, astounding progress has been observed, ought to provide a catalyst to the notion that the region can yet accomplish significant development if the necessary attention is given to the critical areas with the intention of resolving these problems.
The use of alternative dispute resolution techniques such as online arbitration and online mediation have been tried and proven and many models are in use around the world by individual companies and groups that provide a fee based service. It is here proposed that the Caribbean region needs a single comprehensive online ADR institution, which must be grounded in the principles of private international law, cyberspace law and the law of international trade in order to withstand the rigours of both international trade and scrutiny, and to meet the standards of judicial competence required of a regional institution. The idea of the Virtual Magistrate is revisited here.
On May 22, 1996, the National Center for Automated Information Research (NCAIR) of the USA held a conference on online dispute resolution in Washington, D.C. The conference brought together experts from the Cyber Law Institute (CLI), Georgetown University, American Arbitration Association (AAA), Villanova Center for Information Law and Practice and MCI.
These experts discussed and designed regulations for the first active online ADR system on the Internet and gave birth to the Virtual Magistrate (VM), the first online dispute resolution facility. It was jointly managed by the Villanova Center for Information Law and Policy, the Cyberspace Law Institute and the American Arbitration Association.
The idea behind this project was to develop a response to what was perceived as the immediate global need for dispute resolution mechanisms in cyberspace, in what was then a fledgling but rapidly developing and exciting sector. VM was an experimental project that was intended to measure the use of online arbitration mechanisms for online disputes and to gauge the effectiveness of such a system and whether online users would utilize it.
VM was also intended to provide Internet service providers (ISP) with informed and neutral judgments on appropriate responses when making decisions which involved allegations of copyright infringement or defamation. The Virtual Magistrate project offered arbitration to individuals who use online services, systems operators and people who claim to be harmed by wrongful messages, postings and files.
The administrators had systems operators in mind when developing this project. Administrators projected that ISPs would use VM decisions as a basis for their contracts and that they would place an arbitration clause in their contracts. VM also considered cases which were directly related to online activities or commerce dealing with compensation or financial obligations.
The Magistrates were selected by the AAA and the Cyber Law Institute Subcommittee and were paid volunteers randomly selected when a case was accepted. Magistrates needed to be familiar with relevant legal principles as well as technical issues that they could encounter.
When a party wanted to apply for service they had to fill out a complaint form located on the VM’s webpage. The complaint asked for a description of the action, objection to the activity and information about the other person. The complaint was then reviewed by the AAA who, if necessary, would request additional information about the complaint, then secure a participation agreement from both parties. After the necessary documents were secured the AAA would assign Magistrates to the case. The VM tried to resolve all disputes within 72 hours of both parties agreeing to participate.
Communication between the Magistrate and the parties would take place on a designated listserv/newsgroup (“grist”). All participants received a password for access to the grist, where the decision would be posted. In some cases, it may have been necessary for the Magistrate to communicate privately with a party; in these cases communication would take place via the Magistrate’s private e-mail.
VM also decided whether reasonable action should be taken by the systems operator; such as deleting, masking or restricting access to a message, file or posting. If necessary the Magistrate could decide whether access should be denied to certain parties.
The Virtual Magistrate project expected system operators to support and enforce all decisions just as they would in private arbitration. All decisions were made public unless otherwise deemed by the Magistrate. The first decision of the Virtual Magistrate is available here: http://www.interesting-people.org/archives/interesting-people/199605/msg00054.html.
This initial project though it contained many of the basic ideas necessary for the resolution of disputes at the time of its actualization in 1996 and was based on a concept of universality, could not fulfill a global need because of the difficulties involving any attempt to ground it to any particular legal system or systems. It therefore dissolved having created the groundwork for a number of individual mechanisms that are now used worldwide in the resolution of online disputes.
The Caribbean region is in the unique position to create a model for online dispute resolution which goes much further than the Virtual Magistrate project of 1996 and which can encompass the concept of an online international tribunal.
October 1, 2011