Discussing how to make civil judgments in China cannot ignore the major event in recent years, i.e., the outbreak of the COVID-19 pandemic, which shows another contextual element of civil judgments. The impact of this element can even be developing after the termination of the pandemic. In the time of the global pandemic, the scientifically inevitable strategy of lockdown and the epidemiological necessity of keeping social distance put a huge barrier between the justice services and its users. Civil judgments are the results of these services and show the possible interaction between the judiciary and the parties. And there are various practical issues relating to how to prevent the spread of a disease-causing virus and manage court proceedings efficiently and appropriately. In such circumstances, it is hardly possible to insist on regular judicial activities in most cases. Rather, in pursuit of procedural and substantive justice, many jurisdictions have had to adjust to the usage of ODR, which is not a new concept in comparative context. Moreover, both the national judiciary and ADR mechanisms have been heavily affected. The adoption of ODR in the judiciary is not merely a case of combining new technologies with the traditional judicial business. All steps of the judicial proceedings and various judicial activities are covered by online technologies. In China, even all dispute resolution mechanisms (civil courts, commercial arbitration, facilitated mediation, and e-commerce) have introduced ODR into their operations. All four mechanisms face the same online conditions and thus face similar problems. This situation makes the Chinese legal approach to addressing the issues a good example for observation. And since Chinese courts were already prepared to embrace ODR, the emergency situation due to the global pandemic did not shake their determination to improve their online judicial service. It is also less important to distinguish temporary measures from the “new normal” after the pandemic. While the justice system should be evolving and adapt itself to the new e-system, there may be some additional challenges. Besides the insistence on the principle of due process, there are other special elements of ODR to be considered as well. Hence, to introduce how ODR was brought into the Chinese context and how various mechanisms perform, to report the challenges especially to civil justice while insisting on the requirement of due process, and to evaluate the impacts of new technologies, are the purposes of this chapter.

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Challenges of Online Dispute Resolution: New Possibilities and Boundaries

  • Zhixun Cao

摘要

Discussing how to make civil judgments in China cannot ignore the major event in recent years, i.e., the outbreak of the COVID-19 pandemic, which shows another contextual element of civil judgments. The impact of this element can even be developing after the termination of the pandemic. In the time of the global pandemic, the scientifically inevitable strategy of lockdown and the epidemiological necessity of keeping social distance put a huge barrier between the justice services and its users. Civil judgments are the results of these services and show the possible interaction between the judiciary and the parties. And there are various practical issues relating to how to prevent the spread of a disease-causing virus and manage court proceedings efficiently and appropriately. In such circumstances, it is hardly possible to insist on regular judicial activities in most cases. Rather, in pursuit of procedural and substantive justice, many jurisdictions have had to adjust to the usage of ODR, which is not a new concept in comparative context. Moreover, both the national judiciary and ADR mechanisms have been heavily affected. The adoption of ODR in the judiciary is not merely a case of combining new technologies with the traditional judicial business. All steps of the judicial proceedings and various judicial activities are covered by online technologies. In China, even all dispute resolution mechanisms (civil courts, commercial arbitration, facilitated mediation, and e-commerce) have introduced ODR into their operations. All four mechanisms face the same online conditions and thus face similar problems. This situation makes the Chinese legal approach to addressing the issues a good example for observation. And since Chinese courts were already prepared to embrace ODR, the emergency situation due to the global pandemic did not shake their determination to improve their online judicial service. It is also less important to distinguish temporary measures from the “new normal” after the pandemic. While the justice system should be evolving and adapt itself to the new e-system, there may be some additional challenges. Besides the insistence on the principle of due process, there are other special elements of ODR to be considered as well. Hence, to introduce how ODR was brought into the Chinese context and how various mechanisms perform, to report the challenges especially to civil justice while insisting on the requirement of due process, and to evaluate the impacts of new technologies, are the purposes of this chapter.