Tuesday, November 23, 2010

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.

Sunday, November 14, 2010

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”.