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.