Wednesday, December 1, 2010

UNCITRAL, ODR And India

Online Dispute Resolution (ODR) in India (ODR in India) has long remained in the pipeline due to lack of knowledge and absence of adequate will power to use Information and Communication Technology (ICT) for Dispute Resolution. Perhaps, it is a very bizarre idea for Indian Industry and Commercial Entities to use ODR for Dispute Resolution.

ODR can become a very effective Alternative Dispute Resolution (ADR) Mechanism (ADRM) in India. The present ADRM in India is governed by the outdated and problematic Arbitration and Conciliation Act, 1996 (Act). Fortunately, Law Minister Veerappa Moily has shown his willingness to amend/reformulate the Act. However, it has already taken a long time and it may take another year or so to be finally introduced in the Parliament of India.

The real problem for the lack of development of ODR in India and Worldwide is due to absence of “Harmonised International Norms in this regard. Even at the National Level, India is not at all enthusiastic regarding use of ICT for Legal and Judicial purposes.

Take the example of innovative and useful Project of E-Courts in India. E-Courts can greatly reduce the arrears of cases in India and would be great in bringing transparency and efficiency in Indian Judicial System. However, till the month of December 2010, we are still waiting for the establishment of first E-Court of India.

Similarly, the National Litigation Policy of India (NLPI) has not given enough attention to ICT related issues of Litigation and Dispute Resolution. For instance, brief mention of ODR and E-Courts could have made the Policy perfect. Nevertheless, the Policy is a good step in the right direction and may include E-Courts and ODR in the near Future.

At the International Level, United Nations Commission on International Trade Law
(UNCITRAL) is working in the direction of providing a “Harmonised Legal Framework” for ODR. There are very few “ODR Providers” in India and, unfortunately, none of them are part of the recently constituted “Working Group on ODR” of UNCITRAL. This would “Drastically Reduce” the changes of “Adequate and Forceful Representation” to be made to the Government of India for suggesting use of ODR in India.

Till “Regional ODR Systems” are established, there is no sense and little hope of success of ODR in India. International Harmonisation would not serve the purpose in such situation as there would be “Inconsistent and Parallel Mechanisms” that would be operating and defying all Harmonisation efforts of UNCITRAL. Also UNCITRAL cannot make “Generic Norms” for all situations as there may be “Conflict of Interests” in cases of “Consumer Disputes”. UNCITRAL has to do lots of work before ODR can be a Globally Accepted Dispute Resolution Method.