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ADR, a Japanese View. December 12, 2000. Naoshi “Ozzie” Shima VP, Internet Business Development NEC Corporation. E-mail : [email protected]. GBDe Objectives. GBDe: Global Business Dialogue on e-Commerce Established in 1998 Worldwide, CEO driven effort - PowerPoint PPT Presentation
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December 12, 2000December 12, 2000
Naoshi “Ozzie” ShimaVP, Internet Business Development
NEC Corporation
ADR, a Japanese ViewADR, a Japanese View
E-mail : [email protected]
Copyright (c) 2000 NEC Corp.
GBDe ObjectivesGBDe Objectives• GBDe: Global Business Dialogue on eGBDe: Global Business Dialogue on e
-Commerce-Commerce• Established in 1998Established in 1998• Worldwide, CEO driven effortWorldwide, CEO driven effort• Development of policies to promote glDevelopment of policies to promote gl
obal e-Commerceobal e-Commerce• For benefit of businesses and consuFor benefit of businesses and consu
mers everywheremers everywhere<http://www.gbde.org><http://www.gbde.org>
Copyright (c) 2000 NEC Corp.(OECD: October, 1998)
Principle of Governmental/Principle of Governmental/Private Sectors CooperationPrivate Sectors Cooperation
1. Private Sector Leadership Development
2. Stable Legal Environment Given by Government
3. International Coordination
Asia, OceaniaEurope, Africa
Americas
e-Commerce
Copyright (c) 2000 NEC Corp.
JapanJapan
USAUSA EUEU
Global Policy DiscussionsGlobal Policy Discussions
Global Global GovernmentalGovernmental
/Business /Business DialoguesDialogues
Transatlantic Governmental/ Business Dialogues
Japan-EU Governmental/
Business Dialogues
Japa
n-US
Gover
nmen
tal/
Busin
ess D
ialog
ues
Copyright (c) 2000 NEC Corp.
GBDe OrganizationGBDe Organization
BUSINESS STEERING COMMITTEE
AMERICAS ASIA/OCEANIA EUROPE/AFRICA
Issue Working Group
Issue Working Group
Issue Working Group
Issue Working Group
Issue Working Group
REGIONALCHAIR
REGIONALCHAIR
REGIONALCHAIR
EXECUTIVE COMMITTEE
GLOBALCHAIR
Issue Working Group
Copyright (c) 2000 NEC Corp.
TrustmarkTrustmark
ADRADR
Personal DataPersonal DataProtectionProtection
IPRIPR
TaxationTaxation
Trade PolicyTrade Policy
Cyber Security Cyber Security and crimeand crime
Digital BridgeDigital Bridge
GBDe Working GroupsGBDe Working Groups
ConsumerConsumer ConfidenceConfidence
JurisdictionJurisdiction
AuthenticationAuthentication and Securityand Security
Personal DataPersonal DataProtectionProtection
Information InfrastructureInformation Infrastructureand Market Accessand Market Access
LiabilityLiability
Contents and commercialContents and commercial communicationcommunication
IPRIPR
Tax and TariffTax and Tariff
Consumer ConfidenceConsumer Confidence
eGovernmenteGovernment
Paperless Trade andPaperless Trade and Internet PaymentInternet Payment
IPRIPR
TaxationTaxation
Trade PolicyTrade Policy
Cyber SecurityCyber Security
Digital BridgeDigital Bridge
ConvergenceConvergence
a
bb
a
1999 2000 2001
Copyright (c) 2000 NEC Corp.
GBDe Members GBDe Members (as of December,2000)(as of December,2000)
Global Chair
Regional Chair
BSC Members
America On LineCisneros Group
TD Financial GroupSeagramEDSIntesaIBC ColumbiaTime WarnerTelefonos mexicoGrupo CarsoHPRSL CommunicationsAndersen ConsultingUniverso On LineIBMIG Mercury2Children’s TV NetworkeMusicWalt DisneyTelecom ArgentinaALESTRAFieraBCEChubb Corp.Venezuela Analitica EditoresMCI WorldCommNortel NetworksCaribbean Communications NetworkGradiente Eletronica
LG-EDSSingapore ComputerUtili-ModeSharpBank of Tokyo-MitsubishiHitachiNomura ResearchToshibaMitsuiTelecom MalaysiaNTTNECJoong-ang DailyAcerEverest
SICKPNAlcatelABN AMRO BankDTSiemensDeutsch BankDaimler-ChryslerBertelsmannFTMediasetNokiaBrokatBBVATelefonicaTD InvestStandardata EgyptC&W
FujitsuKorea Telecom Vivendi
MIH
Americas Asia/Oceania Europe/Africa
Copyright (c) 2000 NEC Corp.
GBDe Activities CalendarGBDe Activities Calendar
‘98
‘00
‘99
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
6th Capetown
SherpaMeeting
2nd
NYC BSC
7th
Korea Sherpa Meeting
2nd Miami Plenary
Brussels Business Leaders meeting
NYC Global
Business Meeting
1st Brussels Sherpa meeting
1st NYC BSC
2nd Tokyo
Sherpa Meeting
3rd Paris Sherpa Meeting
4th LA Sherpa
Meeting
1st Paris Plenary
5th Seattle Sherpa Meeting
9th
Taipei Sherpa Meeting
8th
Paris Sherpa Meeting
Copyright (c) 2000 NEC Corp.
Recommendations from Consumer Recommendations from Consumer Confidence Issue Group, 1999Confidence Issue Group, 1999
• Rec.1Rec.1: : Governmental support on development of Governmental support on development of trust and transparency for businesstrust and transparency for business
eses
• Rec.2Rec.2: : Governmental support on businessesGovernmental support on businesses initiatives on security and privacy initiatives on security and privacy
• Rec.3Rec.3: : Cooperation between Government and Cooperation between Government and business to provide consumers with business to provide consumers with
efficient efficient remedy mechanisms instead of not remedy mechanisms instead of not necessarily effective national necessarily effective national
consumer consumer protection lawsprotection laws
• Rec.4Rec.4: : Governmental support on businesses efforGovernmental support on businesses effort t to provide convenience for customers.to provide convenience for customers.
Copyright (c) 2000 NEC Corp.
Recommendations fromRecommendations fromJurisdiction Issue Group, 1999Jurisdiction Issue Group, 1999
• Rec.1Rec.1: : Government should promote development Government should promote development of of ADR mechanismsADR mechanisms
• Rec.2Rec.2: : Cooperated policy for the development of Cooperated policy for the development of self regulations, code of conducts, trself regulations, code of conducts, tr
ust ust marks and seal programmarks and seal program
• Rec.3Rec.3: : Freedom of choice and freedom of contracFreedom of choice and freedom of contractt
• Rec.4Rec.4: : Country of origin principle in the absence Country of origin principle in the absence of of contractual choice of lawcontractual choice of law
• Rec.5Rec.5: : Country of origin principle for civil and Country of origin principle for civil and criminal law issuescriminal law issues
• Rec.6Rec.6: : Free choice of forum in the absence ofFree choice of forum in the absence ofprovision in a contractprovision in a contract
Copyright (c) 2000 NEC Corp.
Scope of Work of ADR WG, 2000Scope of Work of ADR WG, 2000
• Study ADR’s role in B2C disputesStudy ADR’s role in B2C disputes
• For that, pre-study on the current status in three regionFor that, pre-study on the current status in three regionss
• Issue recommendations to Internet Merchants, ADR serIssue recommendations to Internet Merchants, ADR service Providers and Governmentsvice Providers and Governments
Copyright (c) 2000 NEC Corp.
Overview of Dispute Resolution Overview of Dispute Resolution Mechanism on B2CMechanism on B2C
NEGOTIATIONNEGOTIATION CONSULTATIONCONSULTATION ARBITRATIONARBITRATION LITIGATIONLITIGATION
Out of courtOut of courtMediationMediation
Court basedCourt basedMediationMediation
Informal ADRInformal ADR Formal ADRFormal ADR
ADR (Alternative Dispute Resolution)ADR (Alternative Dispute Resolution)
MEDIATIONMEDIATION
Our concernOur concernFor B2C
Copyright (c) 2000 NEC Corp.
Recommendations from ADR WG Recommendations from ADR WG to Internet Merchantsto Internet Merchants
1. Use of in-house customers satisfaction program pri1. Use of in-house customers satisfaction program prior to ADRor to ADR
2. Clear notification on the website of readiness for A2. Clear notification on the website of readiness for ADRDR
3. Clear opened information on ADRs enough for the c3. Clear opened information on ADRs enough for the choice by the customerhoice by the customer
Copyright (c) 2000 NEC Corp.
Recommendations from ADR WGRecommendations from ADR WGto ADR Service Providersto ADR Service Providers
1. Autonomy and Impartiality of the organization 1. Autonomy and Impartiality of the organization providing ADRproviding ADR
2. Handling by qualified officer2. Handling by qualified officer
3. Accessibility and convenience3. Accessibility and convenience
4. Practicability of decisions in terms of cost and speed4. Practicability of decisions in terms of cost and speed
5. Transparency of proceedings5. Transparency of proceedings
6. No restriction on contests6. No restriction on contests
7. Proceedings executable by proxy7. Proceedings executable by proxy
8. Equity based, and8. Equity based, and
9. No binding force of decisions, unless pre-accepted9. No binding force of decisions, unless pre-accepted
Copyright (c) 2000 NEC Corp.
Recommendations from ADR WGRecommendations from ADR WGto Governments (1/3)to Governments (1/3)
1. Jurisdiction issue must be resolved regardless of 1. Jurisdiction issue must be resolved regardless of having ADRhaving ADR
2. Necessary policy cooperation between government 2. Necessary policy cooperation between government and private sector on ADR should be madeand private sector on ADR should be made
3. Promote public awareness of ADR3. Promote public awareness of ADR
4. Encourage the use of ADR after negotiation and 4. Encourage the use of ADR after negotiation and before the courtbefore the court
5. Encourage private sector to develop ADR services, 5. Encourage private sector to develop ADR services, including education and training for ADR Officersincluding education and training for ADR Officers
Copyright (c) 2000 NEC Corp.
Recommendations from ADR WGRecommendations from ADR WGto Governments (2/3)to Governments (2/3)
6. No discrimination among ADR service providers 6. No discrimination among ADR service providers
7. Refrain from mandatory accreditation procedure 7. Refrain from mandatory accreditation procedure
8. Allow ADR to function on the basis of equity, code of 8. Allow ADR to function on the basis of equity, code of
conducts or other rulesconducts or other rules
9. No requirement of lawyer qualification to ADR officers9. No requirement of lawyer qualification to ADR officers
10. Promote the development of globally applicable ADR10. Promote the development of globally applicable ADR
Copyright (c) 2000 NEC Corp.
Recommendations from ADR WG Recommendations from ADR WG to Governments (3/3)to Governments (3/3)
11. Refrain from creating obstacles for the innovative use 11. Refrain from creating obstacles for the innovative use
of technologyof technology
12. Binding arbitration to be made possible in certain 12. Binding arbitration to be made possible in certain
casescases
13. Minimum procedural and form requirement13. Minimum procedural and form requirement
14. Adjust existing offline based ADR to be capable of 14. Adjust existing offline based ADR to be capable of
handling online disputehandling online dispute
Copyright (c) 2000 NEC Corp.
Responses at the Miami PlenaryResponses at the Miami PlenaryFirst Comprehensive report durable First Comprehensive report durable
for the use in further practical studyfor the use in further practical study
No bureaucracy should be brought No bureaucracy should be brought into the discussion of ADRinto the discussion of ADR
Some contradiction may exist in the Some contradiction may exist in the paper as a wholepaper as a whole
Copyright (c) 2000 NEC Corp.
ADR (Alternative Dispute Resolution)An informal, private and flexible mechanism aiming at fast and
economical settlements (as compared with litigation)
Carried out between the concerned parties
Provision of expertise by a third party
Moderated by a third party
Judgement by a third party
Enforceability of results
Agreement by both parties
On request of a single party
Go to Arbitration or
Litigation
Has binding force
Enforceable under law
Has binding force
Enforceable with court decision
Has binding force
Enforceable
Agreement by both parties
Agreement by both parties
Mutualagreement
Non-agreement
Go to Consultation,
Mediation,Arbitration or
Litigation
Go to Mediation,
Arbitration orLitigation
Regulations/ Guidelines
Pre-conditions
Agreement on results
Enforceability of foreign results
Not regulated
JIS Proposal (Complaint-handling
management systems guide)
Under applicable
laws
Under applicable
laws
V 1.0 - 31/05/2000
Enforceable with court decision
Agreement byboth parties
Go to Arbitration or
Litigation
《 out-of-court》 《 Court-based》Under
applicable lawsNot regulated
The enforceability within Japan of settlements
mediated through equivalent foreign systems needs
further study
Binding force of results
Enforceable with court decision
(Settlement contract)
(MediatedSettlement record)
Has binding force(as a contract)
Court-enforceable(as a result of
settlement contract)
Court-enforceable(as a result of
settlement contract)
NEGOTIATION CONSULTATION MEDIATION ARBITRATION LITIGATION
Mutualagreement
Non-agreement
(Settlement contract)
Mutualagreement
Non-agreement
(Settlement contract)
Mutualagreement
Non-agreement
On request of a single party
Has binding force(as a contract)
Court-enforceable(as a result of
settlement contract)
Court-enforceable(as a result of
settlement contract)
Has binding force(as a contract)
Court-enforceable(as a result of
settlement contract)
Court-enforceable(as a result of
settlement contract)
Judgement by a third party
NEC Corporation (Asia/Oceania Contact Point)
Basic characteristic
Overview of Dispute Resolution in JapanOverview of Dispute Resolution in Japan
Copyright (c) 2000 NEC Corp.
What’s found through pre-study What’s found through pre-study in Japanin Japan
Most people believe in the good faith Most people believe in the good faith of merchants/manufacturers and try of merchants/manufacturers and try negotiation first when not satisfiednegotiation first when not satisfied
Most people hesitate to go to court and Most people hesitate to go to court and prefer consultation and out-of-court prefer consultation and out-of-court mediation when negotiation failsmediation when negotiation fails
Basic consumer protection law obliges Basic consumer protection law obliges local governments to establish the local governments to establish the consultation centerconsultation center
Copyright (c) 2000 NEC Corp.
What’s found through pre-study What’s found through pre-study in Japanin Japan
In addition, central government, NGO and In addition, central government, NGO and
industrial organization based consultation industrial organization based consultation
centers already existcenters already exist
These centers are off-line based and face These centers are off-line based and face
lack of knowledge/experience/ skills issues lack of knowledge/experience/ skills issues
on handling on-line disputeson handling on-line disputes
Copyright (c) 2000 NEC Corp.
Points under discussionPoints under discussion
No possibility in selection of judge in No possibility in selection of judge in litigationlitigation
Lack of specific business Lack of specific business expertise/experience of judge in litigationexpertise/experience of judge in litigation
Deregulation in attorney lawDeregulation in attorney law Big difference between the power of Big difference between the power of
consumers and merchants/ consumers and merchants/ manufacturers in dispute settlementmanufacturers in dispute settlement
Copyright (c) 2000 NEC Corp.
Scope of Work of Scope of Work of Consumer Confidence WG, 2001Consumer Confidence WG, 2001
What we discussed in GBDe’s Taipei Sherpa meeting on December 3 & 4 are…
Copyright (c) 2000 NEC Corp.
Thank you!Thank you!
http://www.gbde.orghttp://www.gbde.org