Electronic contracts and e-mediation in EU law: time for the EU to extend e-mediation for the benefit of SMEs in B2B transactions?

The article focuses on mediation and e-mediation in electronic contracts with the aim to explore the possibilities of SMEs to use e-mediation for low value electronic contracts in B2B cross-border transactions. It first analyzes soft law instruments at the international level pointing out at the work of UNCITRAL, and the work of International Chamber of Commerce (ICC) ADR Center. It then presents the successful EU legislation on mediation in civil and commercial disputes (Directive 2008/52/EC) and e-mediation in consumer disputes (Directive 2013/11/EU on ADR for Consumer Disputes and Regulation (EU) 524/2013 on online dispute resolution for consumer disputes).

The position taken in the article is that the ODR platform should be extended to SMEs in electronic contracts in B2B relations. Indeed, the recent Commission proposal of 26 April 2018 on an EU Regulation on providers of electronic intermediary services (platform operators), which will establish fair and transparent general contract terms, demonstrates the need for mediation in B2B contracts. This need is also reflected in the recent initiatives of UNCITRAL for mediation in e-commerce that will be discussed in October 2018.

The article ends with arguments that since the EU has adopted the general legislative framework as early as 2008 and has established the ODR platform, the EU has to extend e-mediation as a cost-effective and expeditious method for dispute settlement of electronic contracts for the benefit of SMEs in order to achieve the Digital Single Market.

This article is part of a special issue: The future of the commercial contract in scholarship and law reform - a work in progress