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 The present ADRM in India is governed by the outdated and problematic Arbitration and Conciliation Act, 1996 (Act).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.

International Harmonisation Of ODR Is Required

Online Dispute Resolution (ODR) is one of the most effective methods of dispute resolution. However, it has not received the attention that it deserves. Consequently, ODR is still in its infancy stage and is struggling hard to make a place for itself in the Global Dispute Resolution scenario.

Cross-Border E-Commerce and Online Dispute Resolution are now increasingly interrelated and E-Commerce can find a very good Dispute Resolution Mechanism in the form of ODR. However, there must be an “International Harmonisation” of the Legal Standards regarding ODR before it can be globally accepted.

Recently, International ODR Community has taken significant steps in this direction. In order to streamline Alternative Dispute resolution (ADR), Rules and Regulations have been amended and modified. For instance, UNCITRAL Arbitration Rules 2010 have been formulated by UNCITRAL, Singapore International Arbitration CentreRules (SIAC Rules 2010) have been enacted by SIAC, IBA has issued IBA Rules 2010 on taking of evidence in international arbitration, etc.

While these are remarkable advancements and steps yet they are “Regional” in nature. They do not assist in the “International Harmonisation of ODR”. If other countries do not “Recognise” these Norms, ODR may not be “Globally Successful”.

For instance, ODR in India is almost absent with only few ODR Service Providers in India. Since ODR is not a part of the Arbitration Law of India (Arbitration And Conciliation Act, 1996), there is little hope of using the same in near future. Further, while the Arbitration Act 1996 is itself in the process of reformulation yet there seems to be no hint of using ODR for the amended law. Even the National Litigation Policy of India (NLPI) failed to include crucial fields like ODR and E-Courts.

The United Nations Commission on International Trade Law (UNCITRAL) is working in the direction of providing a “Harmonised Legal Framework” for ODR. At its Forty-Third Session (New York, 21 June to 9 July 2010), the Commission considered a note by the Secretariat on the issue of ODR and entrusted the responsibilities of exploring the use of ODR to a “Working Group III”.

A Working Group on ODR was constituted by UNCITRAL that would assist in the formulation of International Legal Standards for Online Dispute Resolution. However, none of the ODR Services Providers of India are part of the Working Group. In such a scenario there is little hope that “Adequate and Forceful Representation” would be made to the Government of India for suggesting use of ODR in India.

In short, although the efforts of International ODR Community are praiseworthy and reformative, they would not materialise in India for many more years due to inadequate and inappropriate representation from India.

International Legal Standards For Online Dispute Resolution

Alternative Dispute Resolution (ADR) in India (ADR in India) is primarily guided by the Arbitration and Conciliation Act, 1996. It has been almost 14 years since the Act has been enacted and lots of economical, commercial and technological changes have taken place since then.

This is the main reason why Law Minister Dr. Veerappa Moily has suggested for bringing suitable amendments in the same. Even the National Litigation Policy of India (NLPI) has incorporated good provisions regarding effective use of ADR in India.

However, neither the NLPI nor any other statutory or administrative provisions has shown any interest in use of Information and Communication Technology (ICT) for dispute resolution. Naturally, Online Dispute Resolution (ODR) in India (ODR in India) does not exist.

The problem of ODR does not end here. Currently, there are few “Legal Standards” on ODR Worldwide. Further, there is no “Harmonised Model” that can be adopted by all the Nations. If Nations keep and use their respective country law for ODR purposes, the entire purpose of using ODR would be frustrated. This is so because there would be lots of “Conflicting Laws and Norms” that would frustrate the growth of ODR Worldwide.

It is now a widely accepted fact that traditional judicial mechanisms for legal recourse did not offer an adequate solution for cross-border electronic commerce disputes. The solution might reside in a global ODR system for small value, high volume B2B and B2C disputes.

The United Nations Commission on International Trade Law (UNCITRAL) is working in the direction of providing a “Harmonised Legal Framework” for ODR. At its forty-third session (New York, 21 June to 9 July 2010), the Commission considered a note by the Secretariat on the issue of ODR and constituted a “Working Group III” on ODR in this regard.

The 22nd session of the Working Group III would be held on 13-17 December 2010 at Vienna. Among other issues, it would consider preparation of legal standards on ODR. This is the trickiest business as countries like India are not prepared for the present “ODR Regime”. Popular support at the National level of India is required before any such initiative can succeed in India.

In the absence of any “Harmonised Law”, ODR is bound to fail. UNCITRAL has already started the ball rolling by seeking the support of representatives of almost all the countries all over the World, including India. Although the intentions are good yet there is a “Severe Lacuna” in this approach. Along with the “Institutions” who are part of the Working Group III, the UNCITRAL must extent its reach by including those Organisations or Firms or even Individuals who possess expertise in this regard. For instance, in India there are very few “ODR Providers” and none of them are part of the “Working Group III”. In such circumstances, legal standards for ODR in India cannot be formulated as the ODR experts have already been excluded from this exercise. The “Institutional Framework” of UNCITRAL may not allow inclusion of Organisations/Firms/Individuals, but without their active support this ODR exercise may not succeed.

We at Perry4Law and Perry4Law Techno Legal Base (PTLB) are working in the direction of making ODR in India a success. We are providing ADR and ODR Trainings in India so that the “Culture” and “Legislative Framework” for effective ADR and ODR can be developed in India.

We wish all the best to UNCITRAL and its Working Group III and hope that their efforts and initiatives would materialise into a “Globally Accepted ODR Framework”.

Online Dispute Resolution In India

Online dispute resolution (ODR) is one of the most effective methods of dispute resolution. However, in the absence of international harmonisation and lack of technical expertise, ODR has still not achieved what it could have achieved.

Online dispute resolution in India (ODR in India) is not even at its infancy stage. In fact, it does not exist at all. This is so because the legislature of India is not very comfortable with technology related issues.

For instance, information and communication technology (ICT) has not been a part of either the legal system of India or the judicial system of India. Till August 2010 India does not has even a single e-court.

Lawyers and judges are neither conversant nor very comfortable with the ICT related issues and technology laws. Very few of them are aware about the cyber law of India. They are also not aware of the benefits of ICT and e-governance in the sound legal and judicial purposes.

So much so that we at Perry4Law and Perry4Law Techno Legal Base (PTLB) are managing the exclusive e-courts training and consultancy Centre of India. This initiative is very comprehensive in nature and would strengthen the e-courts in India and ODR in India.

However, the ultimate call is for the Law Minister Veerappa Moily to take. For some reasons he has not considered the use of ICT for legal and judicial reforms of India. Even the National Litigation Policy of India (NLPI) suggested by him lacks ICT strengthening.

India needs to take care of many aspects if it wishes to become an Arbitration Hub of the World. It cannot expect to be the same for international commercial arbitration till it adopts both technology as well as an effective legislative framework.

The Arbitration and Conciliation Act 1996 urgently needs suitable amendments, perhaps a reenactment, keeping in mind the contemporary requirements and International standards.

India has waited for a long and it is high time for it to take some real, effective and actual steps in the directions of international commercial arbitration, ODR and e-courts.

Legal and Judicial Systems Of India Need Innovative Methods

Indian judiciary is under tremendous pressure and the increasing backlog of cases is further adding stress to its already stressed functioning. No matter how many courts we open and no matter how many judges we recruit, this backlog of cases would keep on increasing. This is so because our legal and judicial system is deficient and defective.

The legal system is defective as it provides breeding ground for excessive, redundant and fruitless litigation. The governmental departments are in a “compulsive habit” of dragging cases up to the Supreme Court level even though they need not be filed at the very first stage themselves. There are no efforts taken to use alternative dispute resolution (ADR) mechanisms like arbitration, conciliation, mediation, etc to settle cases out of court.

The judicial system is defective as it allows these redundant cases to be filed and dragged up to the level of Supreme Court. No sincere and serious efforts are undertaken to divert civil disputes to ADR mechanisms. The judicial system is also lethargic to adopt and use information and communication technology (ICT) for dispute resolution and effective justice administration.

The truth is that India needs innovative methods to tackle increasing backlog of cases and future cases. At least two innovative methods can be adopted by Indian judiciary. The first one pertains to adoption of online dispute resolution (ODR) mechanisms in India. Till now not even ADR has been properly used in India so using ODR seems to be a distant dream.

Secondly, nothing is more effective than use of e-courts in India. Till the month of August 2010 we are still waiting for the establishment of first e-court in India. India is really confused between computerised courts and e-courts. Whereas India has few computerised courses it has no e-court till now.

There is an urgent need of bringing suitable legal and judicial reforms in India and innovative concepts like ODR and E-Courts can go a long way in achieving this objective. The National Litigation Policy of India (NLPI) has also unfortunately failed to accommodate these innovative concepts. Law Minister Veerappa Moily must include these innovative methods in the amended NLPI as soon as possible.

Online Dispute Resolution And Cross Border E-Commerce Transactions

Online dispute resolution (ODR) essentially involves innovative use of Information and Communication Technology (ICT) to resolve disputes. ODR is an improvement of the traditional alternative dispute resolution (ADR) mechanisms like arbitration, mediation, conciliations, etc. Although all these forms of ADR mechanism are still used in ODR yet the main difference is that of technology.

Being technology driven, ODR is a very wide field. It can be used for resolving various interpersonal disputes including consumer to consumer disputes (C2C) or marital separation; to court disputes and interstate conflicts. However, the most significant use of ODR is its application to e-commerce. In particular ODR is most suitable for resolving disputes arising out of business to consumer (B2C) and business to business (B2B) online transactions.

ODR is also conducive for resolving disputes between parties that are residing in far away and opposite countries of the World. In this ICT connected World, ODR is increasingly used for resolving disputes arising out of cross-border electronic commerce transactions, including B2B and B2C transactions.

However, ODR cannot succeed in the absence of harmonised legal and regulatory framework. There must be a common standard and best practices for ODR to succeed. Similarly, another key factor for the success of ODR is efficient enforcement. Without efficient enforcement ODR would lack the appeal to the parties to adopt ODR for dispute resolution.

Although the journey of ODR has begun yet it has still to cover a long gap. At Perry4Law we would always strive for the betterment of ODR in general and parties to the dispute in particular. Our specialised Techno Legal Segment Perry4Law Techno Legal Base (PTLB) has been working in the sphere of “International Harmonisation” regarding ODR.

We are not only providing Techno Legal ODR Services but are also working in the direction of Research, Training, Education and Policy Making regarding ADR and ODR. We hope our initiatives and efforts would prove useful for all concerned.

Online Dispute Resolution Got Techno Legal Boost

Alternative Dispute Resolution (ADR) is an important method of speedier, economic and effective dispute resolution. Information and communication technology (ICT) has further increased the efficiency and benefits of ADR. Now the newer concepts like Cyber Arbitration, Cyber Mediation, Online Dispute Resolution (ODR), etc have emerged. 

Trans border E-Commerce activities and business activities mandate that there must be an effective, timely and suitable ADR and ODR mechanism in place where business have to be established. This correlation of foreign direct investment and ADR and ODR is not only direct but also very remunerative. Absence of effective ADR and ODR mechanism may prove detrimental to the valuable foreign exchange. 

Perry4Law is managing exclusive Techno Legal ADR and ODR Services in India and World wide. Further, Perry4Law Techno Legal Base (PTLB) is also managing the best techno Legal ADR and ODR Research and Training Centre of India and World wide. The best part is that these ADR and ODR initiatives have been “Integrated” with an allied and very promising field known as E-Courts.

To provide holistic and coordinating activities regarding ADR and ODR, Perry4Law and PTLB have launched the most comprehensive Techno Legal Initiatives of the World. This initiative is combining all the possible aspects of Techno Legal Field at a “Single Platform”.The only requirement that remained was a Blog through which we can share our ideas, projects, initiatives, collaborative activities, etc. With the present platform even this has been achieved.

Persons or institutions interested in having a joint project, sponsorship, partnership, tie up, association, memorandum of understanding (MOU), etc may contact us in this regard.