外文翻译---消费者电子商务交易的在线纠纷解决-电子商务(编辑修改稿)

外文翻译---消费者电子商务交易的在线纠纷解决-电子商务(编辑修改稿)内容摘要：

chanisms, it may contribute to achieving the aim of creating trust in emerce and viable redress for consumers. There are several different mechanisms for ODR to which we turn next. 2. ODR Mechanisms Used for Consumer Disputes ODR can have several meanings. Here we shall take ODR to be information munication technologies (ICT) or ‘online technology’ applied to alternative dispute resolution. The term alternative dispute resolution (ADR) in this context refers to dispute resolution (other than litigation) in the courts, and includes first experiments in extrajudicial ODR were made during 1996/1997 in the US and Canada . Most of these were initially university projects evolving into mercial 10 ventures. In Europe, governments and most notably the European Commission have strongly advocated the use of ODR systems for consumer disputes . Recent years have also seen a considerable amount of private entrepreneurial activity. In addition, traditional offline ADR providers are focusing on the possibilities raised by online technology. At the beginning of 2020 the author counted about 30 consumer ODR schemes in existence. There is an enormous variety in the emerging picture of ODR providers with varying experimentation and different degrees of formality. Various procedures are used. The following is an overview of the methods used: Arbitration Documentsonly arbitration has been used for a considerable time to solve consumer disputes. Consumer documentsonly arbitration being largely a factfinding process, based on the written submissions of the parties, lends itself to ODR . However, although the online medium is very suitable to documentsonly arbitration, online consumer arbitration, as opposed to online mediation (and other forms of ADR) is not very mon. One problem is to secure the agreement of the other party, usually the business, to binding arbitration after the dispute has arisen . However, in some schemes, the emerce provider subscribes to an ODR scheme (including online arbitration) in advance and markets this fact to its customers in order to enhance trust and branding. For such emerce providers ODR is part of the customer services they offer to the consumer. While such a mitment can be enforced against the subscribing supplier, it may not be binding on the consumer. It should be noted, that in most European jurisdictions, an arbitration clause contained in standard contract terms which binds the consumer to submit a dispute to arbitration is likely to be viewed as unfair. For this reason, a standard arbitration clause cannot be enforced against a consumer. Thus, the arbitration clause would only be binding on the business, but optional for the consumer. By contrast, in the US, consumer arbitration clauses are usually enforceable. The US courts will only refuse to enforce a binding arbitration clause against a consumer where it would be unconscionable to do so. This would be the case if enforcing the arbitration clause deprived the consumer of access to a forum to vindicate his rights. The courts have held in several decisions that an arbitration agreement in a consumer contract that forces the consumer to incur excessive arbitration fees is 11 unconscionable. For example, in the muchcited case of Brower v Gateway Inc involving the purchase of a puter and related software products, the arbitration agreement stipulated arbitration before the International Chamber of Commerce (ICC) Court of Arbitration. The ICC advance fee for the claim was the amount of US$ 4,000, of which US$ 2,000 were nonrefundable. The New York Appellate Court held that the arbitration agreement was unenforceable and remanded the case back to a lower court to encourage the parties to find an appropriate arbitration procedure for their small claims dispute. In the US, the American Arbitration Association (AAA) has introduced specific fee schedules for consumer disputes . Likewise the National Arbitration Forum has a special small claims fee . As the US cases demonstrate, the fees for consumer arbitration must be proportionate to the value of the claim. Since arbitration requires the intervention of a qualified and experienced human decisionmaker, but consumer claims are mostly of small value, this may be difficult to achieve. For this reason, too, arbitration may not be the first choice for small and medium value consumer disputes. However, under some schemes, online arbitration is used as the last resort layer of a scaled approach to ODR. In such schemes the parties start with negotiation and if this fails they move on to mediation and only if this fails will they resort to arbitration . Evaluation (nonbinding) Like arbitration, online evaluation is an ODR technique involving the neutral third party making a decision on the basis of the written submissions and documentary evidence provided by the parties. However in the case of evaluation this decision takes the form of a nonbinding remendation. Mock Trials Mock trials (also: summary jury trials) are an ODR technique whereby a jury of peers makes a nonbinding determination of the issues via a webbased platform. Thus the neutral third party is replaced by a number of volunteers (Inter users) acting as if they were an online jury in a civil trial. Mediation Online mediation seems to be the primary ODR method for small consumer disputes . There are four reasons for this primacy of online mediation. First, the process is flexible. The mediator essentially uses his skill to help the parties to 12 municate and reach their own solution. This high degree of party control means that the parties are likely to feel fortable with the online procedure. Secondly, the fact that participation is voluntary means that the parties are more willing to participate as they do not promise their pos。