Online Dispute Resolution- A Way Forward….

“Justice Delayed is Justice Denied”

-William E.Gladstone

Globalization makes the word closer to each other. Technology advancement, growth of cyber space shortens the territorial boundaries. Now the world is suffering from Novel Corona Virus and everyone likely taking side of technology for everything. The situation like this make human being think on the point of traditional laws is to going to use for this anymore. While the first confirmed cases of Covid-19 find in Kerala the Kerala high court taken the prompt decision to dispose the cases online through the mode of video conferencing.[1] All this increasing the platform to resolve the dispute online through the way of ODR, the need of ODR is potentially grown up in the country like India.

Meaning of Online Dispute Resolution

· According to Katsh and Rikfin,[2]

“Three important factors namely convince, trust, expertise forms the essence of ODR”

· According to Hon. Arthur M.Monty Ahalat,[3]

“ODR is a branch of dispute resolution with use of technology to facilitate the resolution of disputes between parties. It primary involves negotiation, mediation or arbitration, or combination of al three.”

ODR in International Level

The ODR at the international level have achieved a significant importance and is based upon UNICTRAL Technical Notes on Online Dispute Resolution[4]which defines and describes ODR as follows:

24. Online dispute resolution, or “ODR”, is a “mechanism for resolving disputes through the use of electronic communications and other information and communication technology”. The process may be implemented differently by different administrators of the process, and may evolve over time.

25. As used herein a “claimant” is the party initiating ODR proceedings and the “respondent” the party to whom the claimant’s notice is directed, in line with traditional, offline, alternative dispute resolution nomenclature. A neutral is an individual that assists the parties in settling or resolving the dispute.

ODR in India

NITI Aayog, Agami and Omidyar Network India, in association with brought together key stakeholders in a meeting for advancing Online Dispute Resolution in India.[5] There are various laws in India who indirectly support the ODR mechanism. The Constitution of India, Article 21[6] which also include the right to speedy trail is part and parcel of right to life are personal liberty, this will added by the famous case law, Hussainara Khaoon vs. Home Secretary Bihar.[7] Information Technology Act, 2000it based on the UNICITRAL model of law of e-commerce was enacted in India to facilitate e-commerce and give legal reorganization to an e-commerce transaction and give effect to the electronic recode and the signature. The most imports step to this end is to the taken on international level by adopting the UNICTRAL model of international arbitration.[8] Indian evidence act also speaks about the agreement entered through electronic record is valid on behalf of section 65-B of act. The section made that electronic evidence as secondary admissible to the court of the record. The civil procedure code , rules1A to 1C,order 10 were inserted which has made it incumbent upon the courts where there exists elements of settlement to call upon the parties at the option to agree for one to other ADR methods.

Methods of ODR

Alternative Dispute Resolution and Online Dispute resolution seems to be similar; the only difference is that ODR is online platform to resolve the dispute.

· Synchronous Online Dispute Resolution is a method to resolution of dispute by communicating with each other by using the real time of parties by the video conferencing.

· Asynchronous Online Dispute Resolution is a type in which the communication is not conducted by video conferencing using real time but by the use of other application such as E-mail.

· Online mediation is now coming as most welcomed process to resolve the dispute. May be because of this Consumer Law Amendment Act, 2019 added mediation is one of the method to resolve the dispute.

· Electronic arbitration is not that much favorable process but that cover up online mediation in certain extent.

Areas where ODR used most

· All kind of commercial dispute- dispute arise with the firms, partners, founders, dealers, suppliers, customers, etc

· Consumer redressable dispute- the Consumer Protection Act, 2019 itself mentioned the method of online mediation so the disputes of deficiency in service, delivery of goods etc can be solved by ODR.

· Intellectual property Rights (IPR) related matters- the matters such as copyright, patent, trademark, design etc

· Matters relating to E-Commerce- the matters like fraud in online tractions, unauthorized use of any name of brand, etc

· Industries related dispute- the dispute arises between employment employees, for discloses the information, salary, and breach in trust ship, contract etc.

· Matters relating to Real Estate- the dispute of sale, tenant, lease, purchase of property the fraud in construction, agreement, breach of contract etc

· Issue related to Banking transaction- the cheque, money laundering, discounting the bills, in the era of digital world this all also going online so the ODR attract this sector also.

Platforms to promote ODR in India

• SAMA[9]

It is new ODR platform formed by the Vikram Kumar, Pranjal Sinha and Akshetha Ashok in the year 2015. It aims to resolve the issues arising between landlords and tenants, employer and employee etc. it assure a speedy and affordable resolution and neutral also effective. It specializes to give legal advice on arbitration, mediation, negotiation and legal service.

• Central for Online Dispute Resolution (CODR)[10]

In 2019 Vikas Mahendra with the law firm partner of Keystone partners formed a CODR. It is private institution mainly focus on online cases. The main goal is to take whole procedure biased and maintaining the confidentially. They work on property agreement, dispute resolution and separate agreement.

• Central for Alternative Dispute Resolution Excellence (CADRE)[11]

Shalini Saxena and Kanxhan Gupta formed this online program which simplifier the rules and to secure justice more quick. They work with the trained arbitrators who will reverse the CADRE rules. This are of specialization stands for arbitration, debt recovery, dispute regarding tenet, contract etc. it is most welcomed startup by the youth. They also work on webinars, data sheets, facts sheets, briefing the papers etc.

• AGAMI[12]

It is non profit organization for Online Dispute Resolution. In the in the year 2012 the team is mainly work on upbringing the ODR. Its work includes different initiatives that work collectively to inspire and support innovative in and around law and justice- the game prize, the agamai submits, etc.

• Presolv360[13]

It was founded by Aman Sanghavi, Bhavan shas, in2017. It was situated in the Mumbai. They deal with the dispute prevention, dispute protection, alternative dispute resolution, communication, neutral prevention, cloud based situation etc. they also takes all the commercial types cases.

Role of judiciary

In case of Grid Corporation of Orissa Ltd vs. AES Corporation,[14] The Supreme Court held that when an effective consultant can be achieved by resort to electronic media and remote conferencing, it is not necessary that the two persons required to act in consultant with each other must necessary sit together at one place unless it is requirement of law or of the ruling contract between the parties.

In case of State of Maharashtra vs. Dr. Praful B. Desai,[15] The Supreme Court upheld that the validity of video conferencing as valid evidence for witness testimony, providing legal backup for the ODR proceedings.

The court in the case of Trimex International vs. Vedanta Aluminum Ltd,[16] Upheld an online arbitration agreement as long as it fulfilled the procedure under section 7 of the Arbitration and Conciliation Act, 1996

Shakti Bhog Food Ltd. v. Kola Shipping Ltd[17], The Supreme Court in this cases held that recording of evidence through video conferencing is a valid mode and is permitted .Actual presence of the parties is not necessary for conversation and concluding of contract as it can be done by electronic media and technology.

Advantage of ODR

· Time and cost management- it is oblivious that our time and cost managed by the ODR. It is more flexible and party can attend it from anywhere.

· Flexible and confidential- it is more flexible than a court system. Also due to virtual system it can be more particular about confidentiality and privacy.

· Informal and trust- ODR build the tryst factor between the party and the neutral third person. And it is more informal than rigid traditional court system.

· Easy to access- it can be accessed by anywhere at any time where the good internet connection is available.

Challenges before developing country like India

· Technology- there is advancement of technology but still there is some inadequacy of technology and lack of internet facility in some rural area is loophole.

· Cyber security- ODR mechanism put lots of burden on the cyber filed. Sometimes hacking, forgery, corrupt data and increasing then ever crime block the chain of dispute resolution.

· Lack of in fractures- non availability of efficient in fracture obstructs the growth of ODR. There is need to computer/laptop/PC/android mobile/ net connection. Everyone is still doing have any kind of such facility but still they have dispute with someone.

· Literacy barriers- it is difficult for uneducated people to access the online dispute resolution process.

· Unknown about virtual world- there is face to face interaction and so ODR is inappropriate to do so. Because of lack of interaction in virtual world there are chances to increase the gamboling, fraud on the part of third person to the disputant parry.

Way forward and suggestions

i. Making the ODR for alternative to ADR is best and efficient that it will not consume the time of court as well as parties.

ii. There needs to be fundamental changes in the mindset to separate the idea of justice from the place called, court.

iii. It helps to achieve and exercise a more efficient, sustainable justice delivery system.

iv. People need to reimage the whole process of justice to work in hybrid mode.

v. The process of ODR saves both time and effort. On one hand where litigation last for centuries it cost much time, making awareness and to implement it on certain filed is best.

vi. Paves the more accessible way to acquire the justice.

vii. The only major issue of privacy and confidently can be tackling by using the privacy enhancing techniques and stronger security mechanism.

Conclusion

With the emergence of technology like IT Act, 2000, e-commerce, e-governance in India Surely the ODR is one of the best alternatives to resolve the dispute. There are already number of pending cases before the court online resolution is best way to solve this pendency. As every coin has two sides like that every fact has both merits and demerits but as it need to take risk to achieve the best means of something and ODR also increase the chance to access the justice. The various startup encouraged by the government of India completely inclined towards the shifting the working culture of courts and advance towards the e- process.

- Shivanjali M Mane

KLE Law College, Chikodi

[1]http://WWW.livelaw.in/news-updates/covid-and-courts-kerala-courts-dispose-10919-cases-via-video-conferencing-155097 [2] Katsh E,ODR, available at, http://www.lex-electronic.org/articles/v10-3/katsh [3] http://www.virtualcourthouse.com/index.cfm/features/1-7/what-should-know-about-online-dispute-resolution.cfm [4]UNCITRAL Technical Notes on Online Dispute Resolution, Official Records of the General Assembly, Seventy-first Session, Supplement No.17 (A/71/17), Para. 217. [5] http://niti.gov.in [6] “no is deprived of life and personal liberty except according to procedure established by the law” [7] (1980) 1SCC 81 [8] The UNICTRAL model of electronic commerce was adopted by the general assembly resolution 51/162 of DEC 16 1996, available at http://www.unictral.org/ [9] http://www.sama.live/ [10] http://codr.co.nz/about/ [11] http://www.cadrework.org/ [12] http://agami.in/odr/ [13] http://www.presolv360.com/ [14] AIR 2002 SC 3435 [15] (2003) 4 SCC 601 [16] (2010) 3SCC 1 [17] (2009) 2 SCC 134