The court system in most parts of Latin America is complex,
expensive, and inaccessible to many people. Especially in a
landscape dominated by a feeling of dissatisfaction with the justice
system, ODR emerges as an efficient alternative. Its efficiency is
particularly useful for cross-border e-transactions between one
party from an emerging economy –who is likely to be the weaker
contracting party– and another from a developed economy.
First, ODR cases usually move quickly, which takes on particular
importance in a region where courts are overloaded with cases and
proceedings can last for several years. Second, ODR is usually also
relatively inexpensive. For most e-consumer disputes, the low value
of the claims is disproportionate to the high cost of overcoming
the barriers of distance and travel time, whether to appear before
the court for a litigation proceeding or for any traditional – that
is to say, face-to-face – ADR mechanism, in addition to the high
professional fees. Without an
alternative like ODR, this situation
practically compels potential
claimants to waive their rights to
access to justice.
The use of ODR can also reduce
or avoid the tension of having
to negotiate thorny issues, such
as the appropriate court, the
applicable law and the physical venue of the procedure. Dealing
with these issues often leads the parties to a stalemate in their
initial negotiations, because neither is willing to give in. This is
especially true for a party from a developed country who refuses to
accept the choice of law and court from its counterpart’s country,
or the location of an ADR proceeding. ODR, for which the
jurisdiction and venue are cyberspace, can avoid prolonged and
futile arguments on these matters.
The other strength of ODR development in Latin America is its
capacity to contribute to the development of the emerging regional
economies. ODR encourages trust in e-commerce, which in turn
increases e-commerce and therefore, stimulates Digital Economy
expansion. Digital Economy growth has a direct effect on the
development of the general economy. Seen from this perspective,
ODR is an important factor that may be able to help boost the
development of emerging economies in Latin America.
Challenges of ODR in Latin America
In spite of its existing and potential strengths, ODR has a long
way to go before it achieves an advanced state of development. We
identify three main challenges ODR will have to face in the region:
(i) the cultural challenge, (ii) the IC infrastructure challenge, and
(iii) the regulatory challenge. An underlying ingredient permeates the
three of them: a lack of trust. Building trust for online and mobile
e-commerce, and therefore a reliable ODR system, is a major
undertaking in which all the stakeholders should be involved.
Governments, businesses, e-consumers and ODR providers have
their own share of responsibility in generating confidence. This
task is one of particular relevance in the Latin American context.
The Cultural Challenge
Latin American societies have not yet fully assimilated the idea of
using ICT for activities like buying and selling or for settling disputes.
Local idiosyncrasy gives priority to personalized relationships over
impersonal treatment. For instance, instead of e-buying a product
alone at home over the Internet, most Latin consumers would feel
more comfortable going to a shopping mall. Or, instead of having
a dispute completely settled in an online environment, they still
feel more comfortable having face-to-face contact with the neutral
or at least, in the case of an institutional authority like a court, one
of its representatives. Feeling comfortable in mobile and electronic
environments could enhance a population’s willingness to subject
e-disputes to ODR proceedings.
Even in the 21st century, the region bears the burden of persistent
illiteracy among a certain percentage of its population, especially
in rural areas, and even more computer illiteracy. There should be
efforts to raise the awareness of the existence of online and mobile
e-commerce and ODR, as well as the advantages they bring with
them on one hand, and of the fact that they save much time which
can be used for other activities –including social ones– on the other.
Precisely because of the poor dissemination given to ICT and its
possible applications in everyday life, there is a lack of confidence
in this kind of online activities.
Those efforts can come from the
public and from the private sectors
and they do not necessarily involve
To improve the population’s
level of computer and cyber
literacy, a proactive and effective
education policy in the field is
needed. Governments have a crucial role to play in the design
and implementation of programs to provide nationwide access to
computer training. Some actions have already been undertaken
in this direction, but its reinforcement and maintenance requires
time to bridge or at least reduce the digital divide.
Moreover, for an ODR process to take place fairly, both parties, as
well as the neutral, should have an adequate level of digital literacy
(or, in its absence, qualified assistance). Otherwise, a web-savvy
defendant would be able to take advantage of all the features of
the ODR platform, while a claimant who is not comfortable in an
online environment would be at a disadvantage from the outset.
The Infrastructure Challenge
Latin American countries face the challenge of filling, or at any rate
reducing, the gap in ICT infrastructure that separates them from
the more developed regions of the world. Many places, not only
in rural areas but also along the belts of economically depressed
populations surrounding big cities, lack basic infrastructure such
as reliable electricity supply and adequate condition of roads.
Many more places lack easy and affordable Internet access and
high-quality broadband connections.
For an ODR procedure to take place in cyberspace, an ODR
platform is required. If necessary, specialized know-how and
professionals could be brought from developed countries to create
new ODR platforms and software. However, we believe it is of
paramount importance to make the most of local expertise, which
has the added benefit of opening the doors for professionals in the
region to get involved in this kind of project.
To develop robust online and mobile e-commerce environments,
we believe it is essential to increase the level of bancarization of
emerging economies in such a way that users have more mobile and
online payment alternatives. Of course, these options to pay for
an e-commerce transaction should be secure for both contracting
parties and remain confidential. This might be achieved through
encryption and should contribute to increasing trust.
We identify three main challenges
ODR will have to face in the region:
(i) the cultural challenge, (ii) the ICT
infrastructure challenge, and (iii) the