This Article on ‘Online Dispute Resolution’ is written by Maurine. A 1st-year student from Fairfield Institute of Management and technology, and an intern at Legal Upanishad.
INTRODUCTION
Alternative Dispute Resolution (ADR) has become an important aspect of the legal system over the years since it allows for quick resolutions and frequently results in outcomes that are beneficial to both parties. Online conflict resolution is an outgrowth of the same, with the sole difference being that it incorporates the use or help of technology in the settlement of disputes. Although India has progressed down the route of digitization, some might claim that ODR methods are important, whilst others contend that they are not. This strategy is frequently compared to alternative dispute resolution (ADR), but it incorporates technology to make the process more efficient.
During the continuing COVID-19 Crisis, Online Dispute Resolution has grown incredibly common, with even regular courts using video calls to hear cases. While still using Online Dispute Resolution as a method for settling conflicts could be advantageous to the parties as it offers advantages such as good operation, accessibility, synchronised communications, and speedy disposal, it is also accompanied by many concerns about compromised confidentiality, literacy rates, and the actual ease of use by all.
This article delves into the details to determine if adopting online dispute resolution has aided in the resolution of disputes in India, or if it is simply an overblown notion with sloppy outcomes that do more damage than good.
WHAT IS ONLINE DISPUTE RESOLUTION IN INDIA (ODR)
ODR is the use of existing information and communication technologies to offer alternative dispute resolution services or the application of ADR in an online context. It makes use of the internet as a much more efficient method for parties to solve their disputes using a range of ADR approaches comparable to those used in traditional ADR.
According to Hon. Arthur M. Monty Ahalt (ret.), Online Dispute Resolution is a branch of resolving disputes that employ technology to assist in the resolution of disagreements between parties. Negotiation, mediation, arbitration, or a mix of the three, are the most common methods used. It is frequently seen as the online counterpart to ADR in this regard.
The basis of Online Dispute Resolution, as per Katsh and Rifkin, is made up of three crucial factors: ease, trust, and competence. Katsh and Rifkin refer to ICT as the fourth party because, in addition to the two arguing parties and the third neutral party, there’s also a fourth party in the action, which is technology. In actuality, the third-party employs the fourth party as a tool for facilitating the process.
Online Dispute Resolution settles e-conflicts as well as classic disputes that may be settled with information technology in a short period of time and at a low cost. Economic, contractual performance, collaboration, industrial, contractual arrangements, defamation, family, proprietary rights, business, banking, insurance, privacy issue conflicts, and other B2B, B2C, and C2C disputes are among the types of disputes it handles. ODR includes e-Negotiation, e-Conciliation, e-Medium, e-Arbitration, and blend techniques like Medola, Mini Trial, Med-Arb, fast-tracked arbitration, Neutral Listener Agreement, Hire a Judge, Concilio-Arbitration, and others. It can use an up-and-coming or a quasi-method to make its conclusion enforceable or quasi-on the parties.
ORIGIN AND EVALUATION
Despite the fact that the Internet was launched in 1969, the need for Online Dispute Resolution did not arise until the early 1990s, because promotional campaigns on the Internet were prohibited until 1992. When the NSF relaxed the embargo, there was an uptick in online disagreements, yet there were no structured dispute resolution organisations dedicated to ODR. The term “ODR” had not yet been coined. The National Center for Automated Information Research sponsored an ODR meeting in 1996 in response to the rise of conflicts emerging from online activity, which resulted in the financing of three experimental ODR initiatives.
Several Online Dispute Resolution providers, including Modria, Cybersettle, ClickNsettle.com, SmartSettle, Legal Referee, and BBB Online, have been actively resolving conflicts involving government and business entities in the public and private domains since 1999. Agencies in India, such as Perry4Law, NIXI (.IN domain), and TLCEODRI, have been campaigning for and initiating ODR.
INSIGHTS OF THE LAW
Besides different sources of global arbitration acts, like the European Convention on International Commercial Arbitration 1961 and the Inter-American Convention on International Commercial 1975, augmented by the Inter-American Convention on Extraterritoriality of Foreign Judgments and Arbitral Awards 1979, the EU Directive on Electronic Commerce 1979, institutional rules, and private binding contracts, there are two primary categories of international arbitration law at the international level.
Since there were no tribunals of law in India in ancient times, household conflicts were settled by the eldest family member, the village Sarpanch, or Kulas, Srenis, Phugas, or Parishadas. Various legislation, like the Madras Presidency Regulation Act, the Bombay Presidency Regulation Act, and the Charter Act 1933, was adopted under the British Empire to promote arbitration. However, the passing of the Indian Arbitration Act, 1940, which was wholly built on the English Arbitration Act, was a momentous move. It is mostly handled through arbitration proceedings.
- The Indian Constitution: Following independence, the Indian constitution was enacted, with Article 21 declaring that no one will be taken of his or her liberty unless by legal procedures. Furthermore, the approach must be “reasonable, equitable, and just.” In a landmark case, the Supreme Court of India ruled that the right to a quick trial is an integral aspect of the right to life or personal liberty.
- 1908 Code of Civil Procedure: Section 89 (Settlement of Dispute Outside Court) and Rules 1A to 1C, Order10 (Direction of Court to opt for just anyone mode of ADR after the first hearing of suit) were inserted into the Civil Procedure Code Amendment Act 1999, making it mandatory for courts to call upon parties to agree to one or more ADR methods at their discretion.
- Arbitration and Conciliation Act, 1996: The Act was enacted based on the UNCITRAL Model Law on International Commercial Arbitration, 1985, and the Conciliation Rules, 1980, to harmonize and universalize the concept of arbitration and conciliation across legal systems around the world.
- The 2000 Information and Technology Act: Writing and signature concepts have lately undergone major modernization to give better confidence to online contracts and hence improve e-commerce. The adoption of the UNCITRAL Model Law on Electronic Commerce in 1996 was perhaps the most significant step in this direction. After that, the UNCITRAL Model Law on Electronic Signatures was approved in 2001. As a result of the legislative revisions, “a universal overhaul of the writing requirement” was implemented.
- Indian Evidence Act, 1872: Sections 65-A and 65-B were introduced, for this reason, allowing electronic evidence as a secondary copy to be accepted in courts of law if certain standards in section 65-B are met.
SUGGESTIONS AND CONCLUSION
With the massive expansion of the internet market, the Online Dispute Resolution mechanism requires broad information and education at the grassroots level through social media, education, street plays, marketing, conferences, seminars, and campaigns, among other things. The government’s involvement is also critical in granting financial help to Online Dispute Resolution initiatives and assisting in the development of the technical and administrative infrastructure necessary to set up an ODR process.
To leverage the benefits of a new generation of technology-led conflicts, privacy and confidentiality concerns must be addressed by utilising privacy-enhancing approaches and better security measures like privacy design methods, privacy engineering, and privacy self-synchronization, among others. There is also a requirement for legal codification, consistent standards, and norms, including the implications of conflict of law rules, to ensure that the ODR process is recognised and admissible both domestically and globally.
It is critical to guarantee that all members of society have access to justice at a reasonable cost. Strong communication infrastructure is required for easy access, and justice must be delivered in a timely and appropriate manner by increasing literacy rates, lowering language and cultural barriers, and providing easy access to e-courts, all of which can contribute to the growth of e-commerce and e-government. Initiatives must be implemented at the national and international levels to expand the wings of Online Dispute Resolution, decreasing the pressure on the judiciary. As a result, progressing ODR is critical to facilitating global concord and encouraging international cooperation in cross-border issues.
References
- Moghe. (n.d.). online dispute resolution mechanism: prospects and challenges in India. Retrieved from legalserviceindia: https://www.legalserviceindia.com/legal/article-839-online-dispute-resolution-mechanism-prospects-and-challenges-in-india.html
- Online dispute resolution: a success or a failure in India. (2021, June 2). Retrieved from ipleaders: https://blog.ipleaders.in/online-dispute-resolution-a-success-or-failure-in-india/