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"Common Law and Equity" Decisions vs. "Statutory Law" Decisions — Which is the Better System?



One of the frustrating ways that courts fail to keep up with the real world is the application of consumer protection laws to global commerce. At net-ARB we believe — as do those businesses that join us — in a level playing field of protection. This means uniform rules for all (such as common law principles) and not allowing anyone to turn a case upside-down on mere technicalities. Or the fact that statutory law is often light-years behind developments in the e-marketplace. net-ARB's decisions are based on fairness, not legal tricks.

For example, let's say you buy safety equipment on line. You'd expect it to comply with international safety standards; that if there is an International Standards Organization (ISO) standard for Hearing protectors (there is, it's ISO 4869-2:1994 Acoustics) a company in a country which doesn't comply with ISO standards couldn't claim a technicality that as selling non-ISO compliant goods isn't illegal in (say) China, or Nepal, or Syria, and they're based in that country, then they can sell whatever they like on the Internet whether it's compliant or not in whatever countries they choose. That's a defense based on strict reading and narrow interpretation.

Sticking to a narrow statutory base as opposed to a wider common law base excludes the most recent developments in the common law worldwide. In some parts of the world, statutory protections to consumers are narrower than the common law's landmark "Donohue v Stevenson" rule in Britain. Or, because they're more restrictive — they're codified — they can't keep pace with modern developments. It is very possible to argue that it is legal to sell counterfeit jeans and perfumes in the Canal Street district — it's making them that breaches copyright, record stores worldwide sell bootlegs all the time — and that because it's legal to sell them, you have no recourse if you buy counterfeit goods on the Internet. (The same used to apply to music purchased from China. According to a statement by RIAA after a court hearing involving Yahoo China in Beijing in 2007, over 99 percent of all music downloading in China infringes copyright, and services such as Yahoo China account for the bulk of the problem.) Statutory protections might differ from country to country (or might not exist at all), so buyers of counterfeit goods from some counties have no chance of justice.

net-ARB uses common law, the basis of the world's best practice in consumer protection in all areas. Not only are net-ARB arbitrations conducted in a fairer fashion, they're fairer to everyone because they make justice speedy and easily accessible to consumers.

When sellers support arbitration through net-ARB they demonstrate to potential customers that they will not try to hide or rely on technicalities, important protections for wary consumers.


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