Indiana Journal of Global Legal Studies

Published by: Indiana University Press

• “I Wish There Was a Treaty We Could Sign”: An Inquiry into the Making of the Global Pact for the Environment

  “I Wish There Was a Treaty We Could Sign”: An Inquiry into the Making of the Global Pact for the Environment (pp. 7-80)

  Marie-Catherine Petersmann

  
  
• Twists & Swirls: Caregiving & Sexualization—Femininity Construct in Gendered Migration from Nigeria to Italy

  Twists & Swirls: Caregiving & Sexualization—Femininity Construct in Gendered Migration from Nigeria to Italy (pp. 81-138)

  Christiana Essie Sagay

  
  
• US-Chi/na Transnational Law in a Time of Trade Crisis

  US-China Transnational Law in a Time of Trade Crisis (pp. 139-204)

  Carrie Shu Shang

  
  
• Torn Between Institutionalisation & Judicialisation: The Demise of the EU-US Privacy Shield

  Torn Between Institutionalisation & Judicialisation: The Demise of the EU-US Privacy Shield (pp. 205-244)

  Elaine Fahey and Fabien Terpan

  
  

 

Developments and Issues in Consumer ADR and Consumer Ombudsmen in Europe

CHRISTOPHER HODGES

This policy brief outlines major developments and issues in consumer dispute resolution systems in Europe that were highlighted at the conference CONSUMER ADR: Delivering Fairness and Justice for Consumers, Business and Markets held at Wolfson College, Oxford on 18 and 19 March 2019.

The principal findings include:

• There is considerable evolution in the alternative dispute resolution (ADR) schemes in some countries. A notable feature is that many of the ADR schemes are placing increased emphasis on integrating mediation into their pre-existing arbitration-style procedures.
• Many countries continue to find it a challenge to get more businesses, especially small and medium-sized businesses (SMEs) to adopt ADR schemes. Equally, many consumers are either unaware of ADR or imagine it to be an advisory service rather than an independent dispute resolution service.
• There is a clear division between EU Member States that have sophisticated CDR schemes ― and, despite the differences between States, are improving their mechanisms ― and those States that have very undeveloped Consumer Dispute Resolution (CDR provision).
• The national landscapes of ADR bodies continue to present problems, notably lack of full coverage and low consumer confidence in the current system.
• Ombudsmen are the leading model of CDR, since they typically operate as part of the system of market regulation as well as the national system of dispute resolution.There is increasing realization that ‘consumer ADR’ is something specific and should have its own architecture.

Delivering Dispute Resolution: Recent review on the resolution of disputes in England and Wales

 

Delivering Dispute Resolution: Recent review on the resolution of disputes in England and Wales

Christopher Hodges

This Report summarizes the main points of two recent reviews on the resolution of disputes in England and Wales. One is a study by Professor Christopher Hodges and the other is a Report for the Welsh Government chaired by Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales. There are strong similarities between their conclusions.

 

• The justice system has broken down in England and Wales. There are too many individual, competing, and overlapping options, which confuse potential users. The system needs to be reconstructed as an integrated single entity.
• Many major dispute resolution pathways are inadequate in delivering justice and should be reviewed. An adversarial system inherently involves levels of cost and delay that defeat people’s desire or ability to reach just resolution of their disputes.
• Experimentation with digitized procedures offers opportunities to modernize processes, with considerable benefits. 
• But digitization can exclude a significant number of people and small businesses, who need personal assistance during, after, and especially before starting any formal process.
• Every dispute resolution pathway should be reviewed against its ability to provide satisfactory answers to three questions:

1. How do people identify and access information, advice, support, and assistance in solving their problems?
2. How do we ensure that dispute resolution pathways are simple, cost-effective and deliver justice to people and organizations?
3. How do we identify systemic problems, and address them so as to reduce risk of future recurrence?

 

Judged against these criteria, dispute resolution is best delivered through online platforms and modernized Ombuds or Tribunals, which are overseen by principles-based regulatory authorities, and which feed back extensive data on issues that can then be addressed by relevant interventions.

Reducing Online Harms through a Differentiated Duty of Care: A Response to the Online Harms White Paper

 

Reducing Online Harms through a Differentiated Duty of Care: A Response to the Online Harms White Paper

Damian Tambini

LSE media expert and Government adviser Damian Tambini argues that social media companies have a 'duty of care' to protect users from harms caused by content published on their platforms, in response to the government's policy proposals in its White Paper on Online Harms.

He argues that the government is correct to propose a new institution, Ofweb, with the power to regulate online content in order to combat the significant harms caused by hate speech, foreign interference in democracy, images of self-harm, and terrorist content online. Yet he also warns of the potential dangers in the approach of the White Paper, which could inhibit freedom of expression if the harms are not clearly defined.

The policy brief proposes a detailed distinction between harmful but legal content and illegal content, and that illegal content should be met with sanctions including civil fines.

Tambini tackles the central legal and constitutional problem regarding a new code of conduct for legal harms such as political speech that interferes in the democratic process – so-called ‘fake news’. He finds that such censorship-like functions would not accord with the European Convention on Human Rights free speech test on proportionality, legality (parliamentary oversight), and necessity in a democratic society.

Therefore, Parliament must decide if new offences and categories of content require new laws and liabilities and set standards for blocking or filtering the most dangerous content. Given the dynamic nature of online harms, the process for introducing new laws to reflect harms should be more efficient and evidence-based, with advice from the new regulator.