THE CISG AND CROSS-BORDER ACCESS TO COMMERCIAL JUSTICE

Global trade has changed rapidly, and in some ways dramatically, since the Great Recession began in 2008. Two sometimes competing factors are at play: the slowdown in globalization due primarily to protectionist measures employed at the national level and the new international opportunities created by technology and regulatory environment reform. Both factors present unique benefits and challenges for micro, small and medium enterprises (MSMEs)1 engaging in or planning to engage in cross-border trade. Barriers to MSME cross-border trade remain high, with one of the highest being the lack of cross-border access to commercial justice for smaller participants. There is a decreased incentive for small businesses to engage in trade and global value chains, or to use arm’s length contracts in such cases, where there is little potential for resolving disputes through litigation, arbitration or mediation. One solution that is gaining significant attention in legal, business and technology circles is Online Dispute Resolution (ODR), which is, in turn, driving legal harmonization that benefits MSMEs. This paper is a discussion of the evolution of a new generation of micro and small cross-border entrepreneurs, the growth of and rationale for improved access to commercial justice, the role the CISG should play in technology-assisted dispute resolution and, more generally, in establishing an environment conducive to MSME growth.