In this chapter we will discuss a variety of dispute resolution decision support systems. These systems cover a wide range of disputes and many of these (particularly in the domain of family law) were constructed by the authors.

Intelligent decision support

Zeleznikow (2002) states that when considering decision-making as a knowledge-manufacturing process, the purpose of a decision support system is to help the user manage knowledge. A decision support system fulfils this purpose by enhancing the user's competence in representing and processing knowledge. It supplements human knowledge management skills with computer-based means for managing knowledge. A decision support system accepts, stores, uses, receives and presents knowledge pertinent to the decisions being made. Its capabilities are defined by the types of knowledge with which it can work, the ways in which it can represent these various types of knowledge, and its capabilities for processing these representations.

The process of decision support may generally be considered as divided into three steps:

1. (1) diagnosis of a problem;

2. (2) selection of an action; and

3. (3) implementation of that action.

We are particularly interested in the second step, the selection of an action as a choice among several alternatives.

Providing decision support under certainty means that the selection of an action leads to one and only one consequence. Providing decision support under conditions of risk means that several consequences are possible, each with a known probability.

It should be stressed that there is a major difference between decision support and decision-making.

Principles and theory of negotiation

Numerous models have been developed from detailed studies of how people negotiate. Formal models, such as game theory, rely upon a mathematical concept of optimal convergence. But do such models realistically simulate human behaviour?

Negotiation analysis

Sebenius (2007) describes the emergent field of negotiation analysis. He claims that it is conceptually located between decision analysis and game theory and seeks to develop prescriptive theory and useful advice for negotiators and third parties. It generally emphasises assessment of the parties' underlying interests, alternatives to negotiated agreement, approaches to productively manage the inherent tension between competitive actions to ‘claim’ value individually and cooperative ones to ‘create’ value jointly, as well as efforts to change perceptions of the negotiation itself. Since advice to one side does not necessarily presume the full (game theoretic) rationality of the other side(s), negotiation analysts often draw on the findings of behavioural scientists and experimental economists.

Sebenius further claims that this approach does not generally assume that all the elements of the negotiation or ‘game’ are common knowledge. The theory tends to de-emphasise the application of game theoretic solution concepts or efforts to find unique equilibrium outcomes.

Instead, it evaluates possible strategies and tactics. Negotiation analysts generally focus on changes in perceptions of the zone of possible agreement and the (subjective) distribution of possible negotiated outcomes conditional on various actions.

Introduction

Information technology has become an integral part of dispute resolution processes, and is of course an essential ingredient of Online Dispute Resolution (ODR). Recently, the role of IT has become prominent in the provision of offline dispute resolution services. Within the judiciary, the introduction of IT is often used as an enabler of change within the organisation (see, for example, Fabri and Contini 2001; Oskamp et al. 2004). A striking example of the use of IT in courts relates to Singapore (Thian 2004). Within ten years, an old-fashioned, slow-working judicial organisation with enormous backlogs became a smooth-functioning, modern judiciary with hardly any backlog.

However, no matter how influential IT currently is in the operation of the judiciary, most judicial applications do not deal with the real content of the cases before the court. Tools that support calculations are an exception: for example, calculators which are used by judges to determine alimony in divorce proceedings. Basically, IT helps in streamlining the process. Examples include case management and workflow management systems.

As distinct from traditional offline processes, ODR by nature needs IT to resolve the conflict: in the online environment all communication is inherently electronic. So, the role of technology is pivotal, and information technology is always present.

The authors of this text have roots in the field of Artificial Intelligence and Law. One of the aims of Artificial Intelligence and Law is basically to apply advanced technology to the domain of law. Conflicts lie at the heart of law.

We have entered a new era. Technology has become an integral part of society, and the Internet is no longer just an infrastructure used to book a flight, buy a book or send e-mails. We watch videos on YouTube, keep in touch with our friends via social networking sites such as MySpace and Facebook or follow our professional contacts via LinkedIn. We download music and movies via Torrent-sites such as The Pirate Bay and other P2P (peer-to-peer) networks, and get the latest news via Twitter. All the above services are delivered via the Internet. In at least two ways, developments such as these contribute to the importance of technology-enhanced dispute resolution, in particular Online Dispute Resolution.

Firstly, they illustrate that many daily activities shift from the physical to the online world. Indeed, virtual communities and virtual worlds have become popular places on the Internet, with some visited even more than Google. The most extreme exponent of this development is the notion of virtual worlds: such as World of Warcraft, Lineage and Second Life. Each of these is visited by millions of participants from all over the world. They spend many hours daily in this online environment which they sometimes consider as ‘the real world’.

In three-dimensional virtual worlds of which World of Warcraft and Second Life are the best-known examples, humans use virtual identities called avatars to socially interact.

Having authors in the Netherlands and Australia collaborate on a book, despite the presence of the Internet, is always difficult. Fortunately VU University Amsterdam is close to Schiphol Airport, and John Zeleznikow regularly visited whenever he was in Europe for a conference. So Amsterdam was always en route from Australia: whether it was via Boston, Lisbon or Tel Aviv. We are grateful to the Australian Research Council and Victoria University for providing the funding for Professor Zeleznikow to visit Dr Lodder.

As with any worthwhile venture, this book relied upon the efforts of many to reach fruition. We are thankful to the countless individuals who contributed in a variety of ways.

Almost a decade ago, while Arno Lodder was just beginning his exploration of the field of technology-enhanced dispute resolution, he held an instructive discussion with two leading, ground-breaking figures in the field: Ethan Katsh and Colin Rule, who were then visiting The Hague. The discussions were invaluable and Dr Lodder and Professor Zeleznikow are very thankful for the regular dialogues they have held since then.

It is not possible to mention all those who collaborated on projects relevant to this book. However, important contributions to Dr Lodder's work (listed in random order) are: Gerard Vreeswijk, Berry Zondag, Stephanie Bol, Frank van Harmelen, Michel Klein and Paul Huygen. His colleagues at VU Amsterdam University provided a rich and pleasant working environment, and in particular he had numerous stimulating discussions with Rob van den Hoven van Genderen.

Introduction

Dispute resolution enhanced by technology can be approached from both a technical angle and from a legal angle. At first sight there seems to be a clear distinction between these approaches. For instance, design decisions seem typical for the technical angle, whereas disclosure of specific information appears to be a legal issue. However, design decisions can be influenced by legal norms, and fulfilling information requirements can have consequences for the design. This illustrates that law and technology cannot be fully separated, but are better approached in combination (Lodder and Oskamp 2006).

In this chapter, our starting point is the law and legal norms, but our discussions are also relevant from a technology perspective. We specifically concentrate on norms applicable to online forms of dispute resolution.

The best-known general sources for norms and Online Dispute Resolution are the European Union recommendations on online arbitration (1998) and online mediation (2001) and ABA's Recommended Best Practices for Online Dispute Resolution Service Providers. We will discuss these three initiatives. We discuss what we consider are the pivotal norms that providers of technology-enhanced dispute resolution should follow.

In this chapter our approach is to address a very general norm first (Section 2.3), and then discuss norms on Alternative Dispute Resolution (Section 2.4), online activities (Section 2.5) and Online Dispute Resolution (Section 2.6). We start, however, with an overview of existing work on the topic.

The digital revolution has necessitated a re-examination of intellectual property issues by intellectual property holders, users and law makers. The nature of the digital age enables data to be easily copied, published and disseminated. Placing data, images, logos and text, for example, on internet websites, is child's play. This means that trade mark holders have a new frontier to battle. Misuse of their trade mark rights, deliberate or incidental, commercial or personal, arises in relation to cybersquatting and domain names, hyperlinking (particularly deep linking), framing in web pages and the use of meta-tags.

This chapter addresses issues relating to the impact of electronic commerce on the specific intellectual property rights of trade marks, patents and circuit layouts. It is intended to be only a brief overview of the law in these areas. The chapter will discuss the use and design of the internet, including hyperlinks, framing and meta-tags. Patents involving software and hardware are considered, and the specific intellectual property type known as circuit layouts is described. Cybersquatting and related issues are discussed in Chapters 8 and 9.

The nature of trade marks

A trade mark is ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’. A trade mark is used in the course of trade to show a connection between a particular business and the goods or services it supplies.

Electronic surveillance methods have become the subject of several pieces of federal legislation since the events of September 11, 2001. Anti-terrorism legislation internationally has introduced powers and regulations which (among other things) have an impact on cyberlaw, communications, the internet and security (confidentiality and safe computer systems). The most recent proposal, the Surveillance Devices Act 2004 (Cth), includes significant increases in powers of investigation and surveillance.

Prior to September 11, 2001, there were no federal or state laws relating to terrorism. The Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001 implemented aspects of UN Security Council Resolution 1373 of 28 September 2001, which called on all nation states to prevent and suppress the financing of terrorist acts. However, beginning in March 2002, the Australian government introduced a number anti-terrorism Bills. In 2003, the government announced the creation of an Ambassador for Counter-Terrorism; the government has since signed numerous memorandums of understanding on counter-terrorism.

Many of these measures affect cyberlaw and electronic commerce. The extent to which law enforcement and security agencies can now intercept, search and seize information, electronically and otherwise, has been dramatically enhanced. Some anti-terrorism provisions permit Australian law enforcement and security agencies to intercept unread emails in routine investigations. This chapter briefly examines these electronic surveillance measures.

The USA PATRIOT Act

In response to the attacks of September 11, 2001 the US Congress drafted, debated and passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001 (commonly known as the PATRIOT Act), all within seven weeks.

Part one. Electronic commerce in general

Chapter I. General provisions

Article 1. Sphere of application*

This Law** applies to any kind of information in the form of a data message used in the context*** of commercial**** activities.

Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.

Commerce is typically about profit. The history and development of commerce involves the element of risk. Risk assessment in commerce involves consideration of such factors as the law of contracts, the parties, the goods or services and legal forum. Many commercial parties have braved the new electronic commerce world without knowing or understanding the legal implications.

In an attempt to ensure confidence, many international organisations have proposed treaties, model laws and protocols to encourage certainty and stability for these international electronic commercial practices and in relation to laws of contract. The UNCITRAL Model Law of Electronic Commerce (Model Law) has proved the most popular, with significant international acceptance by national legislatures, including Australia and New Zealand.

This chapter addresses the regulation of, and legislative responses to, electronic contracting. It challenges the wisdom of and necessity for legislation based on the Model Law, and the introduction of the concept of consent as a precondition for the application of selected legislative provisions.

UNCITRAL Model Law of Electronic Commerce

In 1996 the UN Commission on International Law Trade (UNCITRAL) released what is now the most popular model for consumer and commercial protection in an electronic environment. The UNCITRAL Model Law on Electronic Commerce (Model Law) was intended to provide national legislatures with a template of internationally acceptable rules that would remove legal obstacles and create a more secure legal environment for electronic commerce.

The signature has been the prime method a person uses as a proof of identity, and as a material expression of intent and execution of documents. A signature on a document indicates the provenance of the document and the intention of the signatory with regard to that document. With the advent of the electronic era, a form of signature is adopted for electronic documents. This chapter examines the regulation, use and security of electronic signatures and the types of electronic signatures, such as digital signatures and SSL technology, being used in electronic commerce.

Traditional signatures

Understanding an electronic signature involves understanding the purpose and use of the traditional signature. The status of traditional signatures has been taken for granted or assumed. The law has developed for centuries with notions of deeds and documents being signed, sealed and delivered, witnessed, notarised and so forth. In some situations a signatory is bound on signing, and in others the signatory is not bound until there is an affirming act. The underlying intention of the signatory may be to be bound only by the subsequent act of delivery. There may be many signatures on a contract: one person may sign intending to be bound by the terms of the contract, while another is merely a witness, with no legal interest in the terms. Their intention is paramount.

Domain names disputes arise for a number of reasons. The uniqueness of each domain name leads to the potential for conflicts with businesses and individuals with similar names. In addition to these relatively accidental conflicts, some parties deliberately register names to hijack businesses, extort money from or disrupt the operations of established organisations. Such an action is known as cyberpiracy, cybersquatting or typosquatting. This chapter analyses the nature of domain name disputes and remedies using national courts. The next chapter deals with the application of the Uniform Dispute Resolution Policy (UDRP) of ICANN and selected national domain name administrators, and with selected dispute resolution policies.

Cybersquatting

Speculating on the resale value of internet domains names has become a profitable pastime for internet devotees. For example, loans.com sold for US$3 million, cinema.com for US$800,000 and HappyBirthday.com for US$55,000. These transactions are part of commerce and offend no legal precepts. ICANN and most National Domain Administrators accept the principle of first come first served. Also, many country code domain administrators prohibit the selling of domain names; those who breach such a rule risk forfeiting the domain name. However, a person who registers a domain name identical to a well-known or famous name for the purpose of subsequently demanding an exorbitant fee for ‘transfer’ (that is, sale) is referred to as a cybersquatter. The value to the cybersquatter lies in the fact that every domain name is unique.

1. 1. Purpose. This Uniform Domain Name Dispute Resolution Policy (the ‘Policy’) has been adopted by the Internet Corporation for Assigned Names and Numbers (‘ICANN’), is incorporated by reference into your Registration Agreement, and sets forth the terms and conditions in connection with a dispute between you and any party other than us (the registrar) over the registration and use of an Internet domain name registered by you. Proceedings under Paragraph 4 of this Policy will be conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the ‘Rules of Procedure’), which are available at www.icann.org/udrp/udrp-rules-24oct99.htm, and the selected administrative-dispute-resolution service provider's supplemental rules.

2. 2. Your Representations. By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights.

3. […]

It is said that a verbal contract is worth the paper it is written on. Although the common law recognises oral contracts, this oxymoron reflects the problems associated with proving not only the terms of a verbal contract, but also its very existence. The law of evidence is central to legal systems. Its restraints, rules and procedures aim to provide certainty and reliability within the criminal and civil justice systems. New and unanticipated problems emerge when these historic and sometimes antiquated rules of evidence are applied to electronic documents and records.

This chapter identifies the problems of applying paper-based rules of evidence in the electronic era. It first addresses how electronic information should be retained for the purposes of its potential use as evidence in legal proceedings and examines the relevant case law and statutory provisions. It then tackles the thorny problem of submitting to a court, as evidence, hard ‘copies’, typically printouts of electronic records such as electronic mail, particularly in circumstances where the electronic version has been deleted.

Evidence of electronic records

Courts typically establish facts before determining rights and imposing orders. The rules of evidence were developed to ensure a just basis for the making of such determinations. Evidence should be relevant, reliable and the best that is available. Notwithstanding modern statutes on evidence, case law from the 17th and 18th centuries still dictates the form in which evidence must be presented.