ONLINE DISPUTE RESOLUTION (ODR): PREFACE IN INDIA

 

INTRODUCTION

The Fourth Industrial Revolution in the current scenario represents an era which is fundamentally inclined towards Technology. This is a new chapter in the human development where internet is given more weightage than manual work. Such advancement blends the physical work with than of technological work having their own pros and cons. In order to access the use of speedy work, globalization is the key and it also plays an essential role in revolutionizing towards a generation forward.

The policies announced by the government of India in 2019 on the subject matter of large e-commerce platforms, have eased the work of handling consumer grievances which can now be settled at a faster pace. They are to comply with the norm of protecting personal data of their customers in compliance with the provisions of the Information Technology (Amendment) Act 2008. In addition to all this, e-commerce firms ought to register themselves as a legal entity under Indian Laws in conformity with the guidelines and also with the provisions of Information Technology Rules 2011. This is a mandate in order to ensure transparency. Such legality in the establishment of this framework has given rise to more online transactions.

According to a February 2019 Morgan Stanley report, India is adding one internet user every three seconds and the e-commerce sector in India is estimated to reach USD 230 billion by 2028, accounting for 10 per cent of India’s retail.[1]

 

WHAT IS ODR?

Online Dispute Resolution (ODR) is the means to carry out Alternate Dispute Resolution other than the physical meeting method which will enable the disputing parties to access not only speedy but also cost effective settlement. It involves the use of mainly three such methods such as, Arbitration, Mediation and Negotiation.

Usually this method is used to resolve the issues arising out of civil claims of lesser value. The cost of litigation is very high sometimes it is higher than the amount of claim, so in such cases, it is quite difficult for people to go through the conventional court methods which are comparatively slow and traditional in nature also. There have been innovations in past some time regarding passing of judgment online by the senior Judges and also that the mediators can resolve issues between two parties by interacting with them online through video conferencing. An independent panel of judges can be appointed by the parties on their discretion also.

Such use of technology will enhance the rate of solved cases and enable people for having more faith in the judicial system. This is a cheaper and more convenient method which should be encouraged owing to the present scenario in the country.

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UNCITRAL MODEL LAW

UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006) plays a significant role in improving the legal framework for international trade by preparing international legislative texts for use by states in modernizing the law of international trade and non-legislative texts for use by commercial parties in negotiating transactions.[2]

Online Dispute Resolution was adopted by the General Assembly on 13 December 2016 on the report of the Sixth Committee. Such negotiations were being presented by different committees since 2010. The technical notes of ODR were that the first formal international text recognizing and supporting the use of ODR as a new method of dispute resolution was recognized in its meeting on 5 July in New York.

UNCITRAL’s work on ODR is a response to sharp increase in online cross-border transactions, and the consequent need for a mechanism for resolving disputes that arise from such transactions. ODR is designed to assist buyers and sellers in resolving their disputes in a simple, fast, flexible and secure manner, without the need for physical presence at a meeting or hearing.[3]

The Technical Notes on ODR are descriptive and non-binding. They are expected to contribute significantly to the development of systems to enable the online settlement of disputes arising from cross-border low-value sales or service contracts. In following UNCITRAL’s approach of issuing texts of universal application, the Technical Notes are designed to ensure that ODR systems are accessible to buyers and sellers in both developed and developing countries alike.[4]

 

METHODS OF ODR

Online Dispute Resolution primarily uses three methods such as Arbitration, Negotiation and Mediation for settlement of disputes. Such methods can be used and altered according to the needs and wants of the parties. Main methods used for ODR are described in the following paragraphs.

Firstly, synchronous ODR is a method of dispute resolution where the parties communicate with each other in real-time by using various video-conferencing applications such as Zoom, etc.

Secondly, asynchronous form of ODR is a method in which communication is conducted via email or such other applications like WhatsApp etc. where real-time communication is not required.

Thirdly, online mediation is one of the most emerging sectors in dispute resolution process. Nearly 70% of the ODR platforms[5] are using the same. This process mainly starts by sending e-mails to the parties and making them aware about the proceedings that will take place and consequently meet up virtually in a meeting room.

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Lastly, is the electronic arbitration which covers up the process of arbitration by is used in a very limited way as of now.

 

ODR PLATFORMS

In the current scenario, a paradigm shift has been witnessed from ADR to ODR for ensuring and exercising the facility of speedy justice and advanced technological developments. Following are certain ODR platforms established for resolving disputes in a more feasible and convenient process.

Firstly, CADRE or the Centre for Alternate Dispute Resolution Excellence is one the websites set up for online dispute resolution. The process involved is that one party approaches the platform which then contacts the other party. If both the parties agree then an arbitrator is appointed to that effect with time being recorded via e-mails or WhatsApp. The parties make contact via video conferencing. This website is known for resolving disputes related mainly related to tenants and rent for NestAway and giving legally binding decisions within 20-25 days.

Secondly, SAMA facilitates easy accessibility to high-quality ADR service providers by helping them to resolve their issues online. This platform is used mainly by ICICI Bank resolving issues with values up to 20 lakh rupees.

Thirdly, CODR is the Centre for Online Dispute Resolution which is an institution administering cases online.

Lastly, AGAMI is a non-profit ODR platform providing better system of law and justice.

 

ODR IN INDIA

Online Dispute Resolution in India is in its initial stage gaining momentum and much reputation and publicity day by day. With the enactment of Information Technology Act 2000, e-commerce and e-governance has been given due importance and legal recognition. This technique adopted is trying to get away with those traditional methods and adopt the modern and innovative methods for resolution of disputes.

United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985 and UNCITRAL Conciliation Rules in 1980. India has formulated and follows the established Arbitration and Conciliation Act 1996 (as amended in year 2015) which satisfies the UNCITRAL Model Law. CPC (Amendment) Act 1999 with effect from 7 July 2002 inserted Section 89 which enabled the use of alternate dispute resolution techniques in India.

Where on one side the world is suffering from such a gruesome pandemic which shows a blurry image of some positivity in the near future, it is essential to continue with the administration of justice during the times of COVID’19 also. The work of judiciary should not be stopped since there have been many disputes arising during this lockdown period as well and also it is necessary to continue the work since India already has a long list of delayed cases in the Court of Law. This seems like a rational and reasonable opportunity to use one’s time to the fullest by encouraging virtual or online settlement of disputes and inculcating the feeling of having trust and faith in the judicial system by majority if the population of our country. Personal attendance at a particular place and time is not required because internet can be accessed by anyone anywhere anytime.

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With 4.5 million cases pending in High Courts, 31 million cases pending in district courts and 350,000 backlogs in the top 5 central tribunals, we are in need of more and more ODR platforms that could come up to the rescue.[6] Post COVID’19 we will be requiring more such platforms in order to resolve the backlog that will be carried when courts finally come into proper operation.

 

CONCLUSIONS AND SUGGESTIONS

ODR has proved to an effective method of accessing justice in an enhanced scale to countries like the USA and China. Adopting this method in India will definitely prove to be very beneficial for the current time of pandemic and also for the times to come post this pandemic. ODR will ensure the confidentiality of proceedings taking place in a particular case hence reducing the pressure from media which eventually arise in cases pertaining to national security or offences committed against the State. It will also ensure the secrecy and protection of the brand name or the company whose disputes have to be settled. These proceedings are time bound in nature in such a way that a case will be resolved within 30 days unlike in courts which take years and years of litigation. It also ensures a comfortable dispute resolution as all the work can be done staying home itself.

This method has proved useful not only for multinational companies but also e-commerce websites who practice ADR and ODR for resolving disputes of their customers. This is being used mainly for resolving commercial disputes, consumer disputes, e-commerce websites, employment contracts, real estate, intellectual property, negotiable instruments, etc.

Therefore, it is concluded that Online Dispute Resolution is an upcoming field in the practice of law and will be very much encouraged in the times to come.

 

[1]https://economictimes.indiatimes.com/news/economy/policy/government-unveils-draft-e-commerce-norms/articleshow/70542347.cms?from=mdr

[2] https://www.uncitral.org

[3]http://www.unis.unvienna.org/unis/en/pressrels/2016/unisl235.html

[4] Ibid.

[5]https://www.mondaq.com/india/arbitration-dispute-resolution/935022/online-dispute-resolution-odr-a-positive-contrivance-to-justice-post-covid-19

[6] https://www.mondaq.com/india/arbitration-dispute-resolution/935022/online-dispute-resolution-odr-a-positive-contrivance-to-justice-post-covid-19

Author: Shubhi Dhiman,
School of Law, UPES Dehradun; 3rd year

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