About Oz Susler

I'm the Director of Post-graduate (Coursework) Programs, lecturing in the JD and LLM Programmes at La Trobe University Law School. I have qualifications in arts, education and law from the University of Melbourne and La Trobe University. I completed my doctorate at La Trobe University on international arbitration. I am a graduate member of the Chartered Institute of Arbitrators and an accredited mediator under the NMAS. My research has been primarily focused on international commercial arbitration. I am passionate about coaching tomorrow's lawyers in developing ADR skills through both my teaching and my coaching practice of students in arbitration and mediation. I realised the significance of offering alternatives to litigation when I was in practice as a commercial lawyer. This interest led me to conduct research in international arbitration. My DR research interest has been on how state courts approach jurisdictional issues relating to the arbitrators' jurisdiction in international commercial arbitration. I have also published on investor state dispute settlement systems and received awards for teaching, including services in teaching ADR. Currently, I am involved with a research project in Online Dispute Resolution, which I hope to share the findings of on the ADRRN Blog in the future.

Does Choice of Dispute Resolution Method Affect the Application of the Law?

An Open Question in Australia, Regarding the CISG

The ADRRN Blog encompasses the diverse methods of ADR, arbitration being one of them. This week my colleague Ben Hayward has kindly contributed an article in relation to a significant multilateral treaty utilised in international commercial arbitration known as the CISG. The article is a timely one as we celebrate the 40th year of the CISG. Thank you Ben.

Dr Ben Hayward is a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed his PhD at the Monash Law Faculty in 2015. He has previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers. I thank Ben for his contribution to this week’s blog.

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Photo: Nroose/ Public domain

Author: Ben Hayward

Substantive law doesn’t feature regularly on the Australian Dispute Resolution Research Network blog.  Nevertheless, in today’s post, I’d like to look at one instance where substantive law and choice of dispute resolution method may collide.  This concerns the United Nations Convention on Contracts for the International Sale of Goods: commonly referred to as the CISG.

The CISG is a substantive law treaty developed by the United Nations Commission on International Trade Law. It seeks to harmonise international sales law, around the globe.  Differences in national sales laws are thought to create barriers to trade, increasing merchants’ costs of doing business.  If merchants deal with the same sales law across national borders, their costs of doing business are reduced, and trade is encouraged.

What does this have to do with choosing between dispute resolution methods? There might be a difference in the way the CISG is applied: though at present, we don’t know.

Because the CISG is intended to apply the same way in all jurisdictions where it is adopted – currently 94 States – its interpretation requires sensitivity to that international context.  According to Art. 7(1) CISG:

In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

This provision sets out a rule of autonomous interpretation.  The CISG is to be given its own meaning, rather than being read in light of any particular State’s regular domestic law.  In Australia, therefore, we shouldn’t treat the CISG as if it replicates the rules in the Goods Act 1958 (Vic): even though this might be tempting, where this is the law we’re most familiar with.

Does the choice between dispute resolution methods impact the extent to which such internationally-minded interpretations are achieved?  This is an open question in Australia, and one that I hope to explore in my future research.

Litigation and international commercial arbitration are two different dispute resolution processes that both involve the application of substantive law.  Judges and arbitrators both interpret the CISG, where it applies in the cases they decide.

While the CISG came into force in Australia in 1989 – over 30 years ago – we still don’t have many Australian court cases concerning the Convention.  One of the most highly regarded international databases, the Albert H Kritzer CISG Database, records 28 Australian decisions.  In research I recently conducted for a forthcoming Melbourne University Law Review article, I identified an additional 5 cases via Lexis Advance: bringing the total to 33.  Even still, some of these are appeal decisions, some involve parties opting out of the CISG’s operation, and still others only mention the CISG in passing.  As I address in my forthcoming article and also in prior scholarship, Australian court cases directly applying the CISG tend to take a parochial approach to its interpretation.  It’s not uncommon for judges to equate the Convention’s operation to that of Australia’s ordinary Sale of Goods Acts: even though this is inconsistent with Art. 7(1) CISG’s interpretative rule.

What about the situation in arbitration?  Nearly 20 years ago, Jacobs, Cutbush-Sabine and Bambagiotti suggested that the CISG’s ‘modest treatment’ in Australian case law might be attributed to ‘the prevalence of arbitration, and particularly international arbitration, as a means of resolving dispute[s], although there is no empirical evidence of this’.

If CISG cases involving Australian businesses are being arbitrated rather than litigated, are those arbitral proceedings approaching the Convention in a more internationalist spirit?

At present, this remains an open question.  There is still no empirical evidence concerning the CISG’s use in arbitration involving Australian parties.  Since international arbitration is private/confidential, arbitral awards are not on the public record in the same way that court judgments are.  International evidence does suggest that arbitration is the primary forum for resolving international trade disputes, in a quantitative sense.  Since arbitrators may be chosen for their particular expertise, we might hypothesise that they would be more likely to take the CISG’s international context into account in their decision-making.  Nevertheless, one international study addressing the ‘quality’ of CISG analysis in arbitral awards (compared to court judgments) concluded that the relationship between the Convention and arbitration was ‘a picture of disinterest and neglect … rather than a fruitful marriage’. [1]

The CISG is intended to benefit merchants and their international trading activities.  In future research, I hope to assess the extent to which choices made by Australian businesses between dispute resolution methods impact the Convention’s achievement of this goal.

[1] Petra Butler, ‘CISG and International Arbitration – A Fruitful Marriage?’ (2014) XVII International Trade and Business Law Review 322, 323, 356.

Do consumers and businesses want the benefits of rule of law without the costs of rule of law?

Among its multiple purposes, this Blog offers a space to highlight emerging research in the discipline of dispute resolution. To this end, I have invited Vivi Tan who is undertaking her PhD on the integration of information and communication technologies into dispute resolution processes and its ramifications. Thank-you for sharing Vivi.

Vivi Tan is a PhD student at Melbourne Law School. She researches across fields of consumer protection law, contract law and dispute resolution system and design, including alternative and online dispute resolution.  Her thesis explores the integration of information and communication technologies into judicial and extrajudicial dispute resolution processes and their implications for dispute resolution regulation and practice as well as for consumer protection law. Vivi has also taught Obligations and Contracts in the JD course and is currently teaching in the subject of Artificial Intelligence, Ethics and the Law. She is also an active member of the Centre of Artificial Intelligence and Digital Ethics.

By Vivi Tan

Much of the progress in relation to the implementation of publicly enforced ODR systems is mainly evident in North America[1], the US[2], the UK[3], the EU[4] and China[5]. The types of ODR systems implemented vary according to their level of automation[6] and their positioning within the broader existing legal system or framework. Closer to home, we have seen ODR pilots being undertaken by tribunals such as NCAT and VCAT. A number of studies, commentaries and reports have also unanimously promoted the use of ODR.[7] This reflects the ongoing recognition that ODR can potentially augment and improve existing consumer ADR mechanisms as well as tribunal or judicial dispute resolution mechanisms.

Given the increasing realisation and implementation of ODR within formal legal systems, it is crucial that attention is given to developing and utilising a robust dispute system design (“DSD”) framework to ground the design, implementation and governance of such ODR systems. We must not only focus on the analysis of the efficiency and accessibility drivers behind ODR[8], we must use a theoretically grounded framework to rigorously analyse the suitability of an ODR system as an institution, including the substance and outcomes of the rule choices within the system, the nature and quality of procedural and substantive justice that has been designed, and whether the system can effectively deliver it.[9]

To this end, I drew upon insights from the rich discourse on DSD and developed an analytical DSD ODR framework. The use of such framework should be treated as a distinct activity that has the potential to improve the design and effectiveness of ODR systems and the overall landscape within which they sit.[10] The DSD framework can generate normative values, legal and governance considerations relating to how disputes should be resolved and through what structures. In the consumer context, the framework can be used to analyse critical questions such as whether a consumer ODR system can be designed to enhance the core objectives of consumer dispute resolution; whether its process architecture can be designed to be consistent with the principles and values that are fundamental in a publicly-sanctioned dispute resolution system and vital to the due administration of civil justice and; whether a consumer ODR system can be designed to produce appropriate substantive outcomes?

Put simply, dispute system designers can use the DSD framework to critically analyse considerations and choices relating to:

  1.  the system design (system institutionalisation)
  2. the process design (appropriateness of tools and processes to be used) and
  3. the governance design (procedural and substantive safeguards, systematic oversight and evaluation).

The design of this analytic framework is highly influenced by the contributions in the DSD field from Ury et al, Constantino and Merchant, Bingham, Ostrom, Smith and Martinez, and, from the consumer dispute resolution field, Steffek et al., Hodges et al. and Gill et al.[11] In particular, it attempts to reconcile the earlier DSD contributions, which tended to have a process design focus, with the later contributions which put more emphasis on system design and governance focus. Since a detailed analysis of the DSD framework will be beyond the scope of this article, I will instead provide a summary of what each aspect entails.

The system design aspect is primarily concerned with the institutionalisation of ODR as a dispute resolution mechanism within Australia’s consumer regulatory and policy context. Dispute system designers will need to consider the unique characteristics of consumer disputes and the kinds of goals and objectives behind consumer redress and consumer protection regulations. The designers can then consider whether there needs to be prioritisations or trade-offs amongst those goals and how they are to be reflected in the design of the system.[12] There must also be a critical analysis on the interaction between the ODR system and other dispute resolution processes in the existing consumer redress framework in order to guide the positioning and integration of ODR as either an alternative or an additional model which can augment existing mechanisms of consumer redress.

System design considerations are to be treated as primary considerations which will directly influence and shape the governance and process design considerations. The process design considerations in turn focus on process architecture behind the ODR system including the different process options (prevention, management and resolution), the different resolution approaches (rights vs interest-based, adjudication vs settlement, intermediation) as well as the different functional characteristics. For example, system designers will need to consider the extent of integration of technology such as automated- decision-making functionality or artificial intelligence and its implications on the overall system, process and governance aspects of the ODR system.[13]

Finally, it is important that system designers pay close attention to governance considerationswith a view to fully integrate them onto the process architecture and to minimise the risks that ODR presents to the preservation of civil justice values such as accessibility, legal validity, transparency and accountability.[14]  As part of a systematic oversight and governance strategy, the system must be evaluated using quantitative and qualitative criteria to measure its effectiveness in meeting its goals and its ability to provide access to procedural and substantive justice[15] for consumers.

I hope that this ODR DSD framework can be used to critically analyse the choices relating to how a consumer ODR system should be designed, how its processes should be structured and how the system and its processes can be governed and evaluated. I also hope that the framework will have broader application to other disputing contexts as well.

[1] ‘Civil Resolution Tribunal British Columbia’ <https://civilresolutionbc.ca/&gt;; ‘Condominium Authority of Ontario’ <https://www.condoauthorityontario.ca/tribunal/&gt;; ‘The Platform to Assist in the Resolution of Litigation Electronically (PARLe)’ <https://www.opc.gouv.qc.ca/en/opc/parle/description/&gt;.

[2] The National Center for Technology and Dispute Resolution, ‘Courts Using ODR’ <http://odr.info/courts-using-odr/&gt;; ‘Utah Courts Small Claims Online Dispute Resolution Pilot Project’ <https://www.utcourts.gov/smallclaimswvc/&gt;.

[3] ‘UK Online Money Claim’, GOV.UK <https://www.gov.uk/make-court-claim-for-money&gt;; ‘Online Court and Tribunal Services for Professional Users and the Public’ <https://www.gov.uk/guidance/online-court-and-tribunal-services-for-professional-users-and-the-public&gt;.

[4] ‘EU ODR Platform’ <https://ec.europa.eu/consumers/odr/main/?event=main.home2.show&gt;.

[5] China Justice Observer, ‘COVID-19 Turns All Chinese Courts into Internet Courts Overnight’ <https://www.chinajusticeobserver.com/a/covid-19-turns-all-chinese-courts-into-internet-courts-overnight&gt;; ‘The Litigation Platform of Hangzhou Internet Court’ <https://www.netcourt.gov.cn/portal/main/en/index.htm&gt;.

[6] Vivi Tan, ‘Online Dispute Resolution For Small Civil Claims in Victoria: A New Paradigm in Civil Justice’ (2019) 24 Deakin Law Review 101. In this article, I argued that ODR systems to be differentiated through their level of automation and function. Such classification based on the level of automation focuses on the functionality of the ODR system. At one end of the spectrum, ODR can include technology-based substitution or automation of offline interactions and activities.[1] And at the other end of the spectrum, there are more complex automated ODR systems which have the potential to offer problem diagnosis and resolution capabilities that are fully automated.

[7] VCAT ODR Pilot Team, ‘VCAT ODR Pilot – a Case Study’ (at the ODR The State of the Art International Symposium, 22 November 2018) <https://www.odrmelbourne.com.au/&gt;; ‘NCAT Online Dispute Resolution Pilot’ <http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2016%20Speeches/Wright_120816.pdf&gt;; Tan (n 6); Tania Sourdin, Bin Li and Tony Burke, ‘Just, Quick and Cheap: Civil Dispute Resolution and Technology’ (2019) 19 Macquarie Law Journal 17; Peter Cashman and Eliza Ginnivan, ‘Digital Justice: Online Resolution of Minor Civil Disputes and the Use of Digital Technology in Complex Litigation and Class Actions’ (2019) 19 Macquarie Law Journal 39; Monika Zalnieriute and Felicity Bell, ‘Technology and the Judicial Role’ in The Judge, the Judiciary and the Court: Individual, Collegial and Institutional Judicial Dynamics in Australia (Cambridge University Press, 2020); Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27 Australasian Dispute Resolution Journal 227; Productivity Commission, Access to Justice Arrangements, Inquiry Report No.72 (2014) 68; Victorian Government, Access to Justice Review Report and Recommendations (Volume 1) (August 2016) <https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/3314/8601/7221/Access_to_Justice_Review_-_Report_and_recommendations_Volume_1.PDF&gt;; Productivity Commission, Consumer Law Enforcement and Administration (2017).

[8] Tan (n 6); Legg (n 7); Lee A Bygrave, ‘Online Dispute Resolution – What It Means for Consumers’ (Baker & McKenzie Cyberspace Law and Policy Centre in conjunction with the Continuing legal Education Programme of University of NSW, 2002). Bygrave argued that the ‘quick-fix’ enthusiasm surrounding the online facilitation of ADR focused too heavily on the efficiency arguments or drivers such as the apparent speed, flexibility and affordability relative to traditional litigation in the courts as well as the ability to alleviate pressure on the court system. Legg has similarly argued that ‘achieving access to justice requires careful attention on the key [ODR] design considerations including convenience, expertise, impartiality, fairness and costs’.

[9] Lisa Bingham, ‘Designing Justice: Legal Institutions and Other Systems for Managing Conflict’ (2008) 24(1) Ohio State Journal on Dispute Resolution 1, 19, 25–26.

[10] Andrew Le Sueur, ‘Designing Redress: Who Does It, How and Why?’ (2012) 20 Asia Pacific Law Review 17.

[11] William Ury, Jeanne Brett and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut The Costs of Conflict (Jossey-Bass, 1988); Cathy A Constantino and Christina S Merchant, Designing Conflict Management Systems: Guide to Creating Productive and Healthy Organisations (Jossey-Bass, 1st ed, 1995); Bingham (n 9); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University press, 1990); Stephanie Smith and Janet Martinez, ‘An Analytic Framework for Dispute Systems Design’ (2009) 14 Harvard Negotiation Law Review 123; Felix Steffek and Hannes Unberath (eds), Regulating Dispute Resolution – ADR and Access to Justice at the Crossroads (Hart Publishing, 2013); Christopher Hodges, Iris Benöhr and Naomi Creutzfeldt, Consumer ADR in Europe: Civil Justice Systems (Hart Publishing, 2012); Chris Gill et al, ‘Designing Consumer Redress: A Dispute System Design (DSD) Model for Consumer-to-Business Disputes’ (2016) 36(3) Legal Studies 438.

[12] Michael J Trebilcock, ‘Rethinking Consumer Protection Policy’ in Charles E F Rickett and Thomas G W Telfer (eds), International Perspectives of Consumers’ Access to Justice (Cambridge University Press, Online Publication, 2009) 68.

[13] Tan (n 6); Robert J Condlin, ‘Online Dispute Resolution: Stinky, Repugnant, or Drab’ (2017) 18(3) Cardozo Journal of Conflict Resolution 717.

[14] Tan (n 6).

[15] Bingham (n 9); Mary Anne Noone and Lola Akin Ojelabi, ‘Alternative Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 108.

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