Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis

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dc.contributor.advisorRycroft, Alanen_ZA
dc.contributor.advisorNcube, Carolineen_ZA
dc.contributor.authorKritzinger, Julianen_ZA
dc.date.accessioned2018-02-05T13:06:20Z
dc.date.available2018-02-05T13:06:20Z
dc.date.issued2017en_ZA
dc.description.abstractOnline Arbitration is an online alternative dispute resolution (OADR) process that resolves disputes without litigation outside national courts. Due to globalisation and increased e-commerce, international commercial online arbitration has become more important and it is therefore essential to look at the legal and technical requirements for a more effective international online arbitration regime or lex electronica arbitralis, specifically focused on disputes that arise from cross-border, low value e-commerce transactions for both goods and services, and especially between online businesses and consumers (B2C), but also between online businesses (B2B). The lex electronica arbitralis should lead to swift outcomes that will be able to be enforced efficiently anywhere in the world, without impairing the requirements of accountability, due process, efficiency, impartiality, independence, fairness, transparency, etc. The 'UNCITRAL Technical Notes on ODR of 2016' follows a non-binding guideline format, so there is currently no legal outline that exclusively regulates online arbitration. Due to this lacuna, the guidelines of the 'Technical Notes' and rules of traditional international commercial arbitration will have to be used as far as they accommodate online arbitration. Due to its unique features, online arbitration however needs an exclusive set of rules that will deal with its legal and technical requirements. The most comprehensive manner to have realised an online arbitration regime or lex electronica arbitralis would have been by the proposed 'UNCITRAL Draft Procedural Rules (DPR) on OADR for Cross-Border E-Commerce Transactions'. Unfortunately, since Working Group III (WG.III), who was mandated by UNCITRAL to compile the 'DPR', could not manage to reach consensus on many aspects, the 'Technical Notes' was adopted instead. The thesis will review WG.III's progress to complete the 'DPR' and how it eventually led to the adoption of the 'Technical Notes'. The 'Technical Notes' still leaves many questions and uncertainties on many of online arbitration's legal and technical requirements that will be pointed out. The thesis will indicate that these legal and technical requirements do not compose insurmountable challenges, but that UNCITRAL will have to address them when they decide to revise the 'Technical Notes' in the future or when they decide to compile a set of legal standards exclusively for online arbitration in the future. The focus will also be directed to the future of international arbitration legislation in a developing country such as SA, while a plea is made to SA lawmakers to make provision for online arbitration.en_ZA
dc.identifier.apacitationKritzinger, J. (2017). <i>Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis</i>. (Thesis). University of Cape Town ,Faculty of Law ,Intellectual Property Research Unit. Retrieved from http://hdl.handle.net/11427/27312en_ZA
dc.identifier.chicagocitationKritzinger, Julian. <i>"Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis."</i> Thesis., University of Cape Town ,Faculty of Law ,Intellectual Property Research Unit, 2017. http://hdl.handle.net/11427/27312en_ZA
dc.identifier.citationKritzinger, J. 2017. Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Kritzinger, Julian AB - Online Arbitration is an online alternative dispute resolution (OADR) process that resolves disputes without litigation outside national courts. Due to globalisation and increased e-commerce, international commercial online arbitration has become more important and it is therefore essential to look at the legal and technical requirements for a more effective international online arbitration regime or lex electronica arbitralis, specifically focused on disputes that arise from cross-border, low value e-commerce transactions for both goods and services, and especially between online businesses and consumers (B2C), but also between online businesses (B2B). The lex electronica arbitralis should lead to swift outcomes that will be able to be enforced efficiently anywhere in the world, without impairing the requirements of accountability, due process, efficiency, impartiality, independence, fairness, transparency, etc. The 'UNCITRAL Technical Notes on ODR of 2016' follows a non-binding guideline format, so there is currently no legal outline that exclusively regulates online arbitration. Due to this lacuna, the guidelines of the 'Technical Notes' and rules of traditional international commercial arbitration will have to be used as far as they accommodate online arbitration. Due to its unique features, online arbitration however needs an exclusive set of rules that will deal with its legal and technical requirements. The most comprehensive manner to have realised an online arbitration regime or lex electronica arbitralis would have been by the proposed 'UNCITRAL Draft Procedural Rules (DPR) on OADR for Cross-Border E-Commerce Transactions'. Unfortunately, since Working Group III (WG.III), who was mandated by UNCITRAL to compile the 'DPR', could not manage to reach consensus on many aspects, the 'Technical Notes' was adopted instead. The thesis will review WG.III's progress to complete the 'DPR' and how it eventually led to the adoption of the 'Technical Notes'. The 'Technical Notes' still leaves many questions and uncertainties on many of online arbitration's legal and technical requirements that will be pointed out. The thesis will indicate that these legal and technical requirements do not compose insurmountable challenges, but that UNCITRAL will have to address them when they decide to revise the 'Technical Notes' in the future or when they decide to compile a set of legal standards exclusively for online arbitration in the future. The focus will also be directed to the future of international arbitration legislation in a developing country such as SA, while a plea is made to SA lawmakers to make provision for online arbitration. DA - 2017 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2017 T1 - Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis TI - Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis UR - http://hdl.handle.net/11427/27312 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/27312
dc.identifier.vancouvercitationKritzinger J. Commercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralis. [Thesis]. University of Cape Town ,Faculty of Law ,Intellectual Property Research Unit, 2017 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/27312en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentIntellectual Property Research Uniten_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherCommercial Lawen_ZA
dc.subject.otherIntellectual Property Rightsen_ZA
dc.subject.otherCommercial arbitrationen_ZA
dc.titleCommercial arbitration in cyberspace: the legal and technical requirements towards a more effective Lex Electronica Arbitralisen_ZA
dc.typeDoctoral Thesis
dc.type.qualificationlevelDoctoral
dc.type.qualificationnamePhDen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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