Wednesday, February 9, 2011

ODR In India Is Facing Severe Legal Roadblocks


Praveen Dalal

Online Dispute Resolution (ODR) is an effective mechanism to resolve certain types of disputes in an amicable and cost effective manner. ODR essentially involves use of Information and Communication Technology (ICT) to achieve its purpose. Further, ODR also requires a sound Legal Framework that can support the modalities of ODR.

There is no dedicated Legal Framework for Online Dispute Resolution in India (ODR in India). Although some hints can be picked from the sole Cyber Law of India, as incorporated in the Information Technology Act, 2000 (IT Act, 2000), yet these random and selective provisions cannot sustain a sound, robust and long term ODR System in India.

If a casual Legal Framework is enough, then we do not even need the IT Act, 2000 for ODR purposes in India. We can pick any law, give it a Purposive Interpretation and claim that we have a Legal framework for ODR in India. The truth is that India has no Legal Enablement of ICT Systems in India. Even we do not have International Legal Standards for Online Dispute Resolution.

Absence of Legal Enablement of ICT Systems in India is the main reason that we are still waiting for the establishment of First E-Court of India and birth of ODR in India. Despite all contrary claims, India is still not ready for E-Courts and ODR as we lack Techno Legal Expertise to handle these ambitious Projects.

Another factor that has resulted in lack of growth of ODR in India is “Inadequate and Inappropriate Representation” of India at International Platforms, Organisations and Institutions. For instance, the United Nations Commission on International Trade Law (UNCITRAL) has almost nil representation from India.

None of the ODR Service Providers of India are part of UNCITRAL ODR Initiatives. Naturally, India cannot have people or institutions that would help in achieving “International Harmonisation” regarding ODR from India’s side.

This “Missing Link” between UNCITRAL, ODR and India need to be bridged before India can effectively be a part of International ODR Community.

If India claims that it can, and would, use ODR for speedier dispute resolution or as a method of Alternative Dispute Resolution (ADR) Mechanism, this would an “Over Ambitious” statement far from ground realities existing in India. Even the National Litigation Policy of India (NLPI) is silent on aspects of E-Courts and ODR.

We have to remove various Obstacles and Roadblocks, especially those raised by Legal Framework, before ODR can succeed in India. Presently, that seems to be a tough task as there is no hint of the same. I prefer to keep my fingers crossed.