ALTERNATIVE DISPUTE RESOLUTION FOR E-COMMERCE DISPUTES

GENERAL DESCRIPTION

The development of information technology and telecommunications leads to the development of the telecommunications facility services. One of them is the development of internet service. Nowadays, internet does not only become a media where much information can be accessed, but also becomes a space to do a trading transaction, known as electronic commerce (e-Commerce).

E-commerce has 5 basic categories. Those are Business – to – Consumer, business – to – business, consumer to customer, business to government and business to process (Bond University, INFT 12-221/72-7221 E-Commerce 1, Lecture 1 Notes). E-commerce lets organization or company get into the market easily, cheaply, and geographically borderless. Everything will be in the cyberspace where the stakeholders of e-commerce interact, communicate, do transaction, and also compete.

E-commerce gives many advantages. Besides, it also has some disadvantages. Sometimes, the stuffs offered in the websites are different in quality with those are in fact. E-commerce also leads to individualism, since the seller and the buyer do not directly meet. That causes the lost of trust among seller and buyer and the raising of an animus by using technology (deception, pirating, hacking, etc.). Those are the trigger of a dispute among the e-commerce performers.

Some countries are now in continual development to create the law about e-commerce. International conventions appear to regulate e-commerce in the borderless cyberspace. One of them is UNCITRAL law model of e-commerce, which is usually used as the reference by several countries, including Indonesia and Singapore, in making the draft of law about e-commerce. Singapore has made the basic legal and infrastructure to support e-commerce since 1998 (www.ida.gov.sg), such as Electronic Transactions Acts (ETA) for electronic signature and Copyright Act which refers to Word Intellectual Property Organization Copyright Treaty 1996.

E-commerce in Europe mostly refers to the regulation from the Union of Europe, since there are many European countries joined it. France, as one of them, refers to the rules in the Union of Europe, such as the rules in Commission Nationale de L’informatique et des Libertes (CNIL). E-commerce regulation in France refers to Directive 00/31/CE of the Europe Parliament and the Council of 8 June 2000, OJ(L) 178/1 of 17 July 2000 (www.cnil.fr)

Practically, even though the regulations of e-commerce has not been made in detail to the solution rules, almost in all the countries above, there are general rules of civil law consisting of alternative dispute resolutions which can be used in such an e-commerce dispute. E-commerce transaction is borderless and timeless, so that so many e-commerce cases are outside of the jurisdiction area of each country. That is why it is needed a more flexible alternative resolution which follow the characteristics of e-commerce itself.

Some countries including Singapore, France, and Indonesia, already have the alternative dispute resolution which can be used to solve e-commerce problems. In Singapore, alternative dispute resolutions are mostly in the form of negotiation, mediation, and arbitration. Arbitration of Singapore refers to UNCITRAL-Model Law on International Commercial Arbitration (International Act, Cap 143A, 2002 Rev Ed). (http://www.siac.org.sg/). In 1991,Singapore found Singapore International Arbitration Centre (SIAC). It is followed by founding Singapore Mediation Center in 1997 (http://www.mediation.com.sg) and by creating the regulations about Community Mediation Center (Community Mediation center-CMCs, Cap 49A, 1998 Rev Ed). Singapore is an interesting country to be observed, since it uses internet technology in solving the e-commerce problems. The alternative dispute resolution is often called “e@dr” or eAlternative Dispute Resolution. (http://www.e-adr.gov.sg/)

France mostly uses conciliation, mediation, and arbitration. It has Le Centre de Mediationet d’Arbritrage de Paris (CMAP). The CMAP is joined together in MEDAL (Mediation Service Alliance) with USA, Netherland, England, and Italia. MEDAL is aimed to provide international mediation service for solving commercial dispute. http://www.jamsadr.com/images/PDF/DRA-2006-09.pdf). In France, arbitration is based on these regulations; le Nouveau Code de Procedure Civile (Livre IV-L’Arbitrage, le Code Civil (art.2059,art.2060,art.2061), le Code du Commerce (art.631.art.631-1), le Code de l’Organisation judiciaire (art.311-11) (http://www.arbitrage-fr.org/).

Compared to Singapore and France, the implementation of information technology in e-commerce transaction in Indonesia is still considerably different. Indonesia has just validated its law about e-commerce (April, 2008), the law of information and Electronic transaction. Meanwhile, in solving e-commerce dispute, Indonesia uses the law about arbitration and alternative dispute resolution (Code no. 39, 1999) and other civil laws.

Nowadays, Indonesia properly should reflect to other countries, such as Singapore, Malaysia, France, England, USA, etc, since Indonesia is a country starting to enter the cyberspace which rapidly grows. The number of internet users is continually increasing. In the late 2006, there are 20.000.000 users, and it increased to be 25.000.000 in the late 2007. (www.apjii.or.id/dokumentasi/statistik.php?lang=ind). The large number of the internet technology use certainly arouses the potency of e-commerce disputes.

Singapore and France are good references for Indonesia in completing its law of information and electronic transactions, especially in the alternative dispute resolution. The laws of Singapore come of British Common Law system, while those of France come of Civil Law system. Besides, Singapore is a country in Asia Pacific which strengthens its position as the center of international e-commerce since 1998, and becomes the most progressive country in e-commerce. The development of law in France is much involved by law of the Union of Europe, since France geographically is located in Europe and joined the Union of Europe, in which the e-commerce rapidly grows. Meanwhile, the law system of Indonesia is historically connected to France. It is based on the principle of Dutch concordance. Netherland was the colony of France.

Singapore and France are evidently more advanced than Indonesia in e-commerce. Both already have specific regulations related to alternative dispute resolution in e-commerce for couple years ago. Meanwhile, Indonesia has just legalized its regulations. This study may be used to open the possibility of completing regulations for solving e-commerce problems. It is interesting to compare the alternative dispute resolutions of France and Singapore and how Indonesia solves e-commerce disputes.