Legal Standards For Online Dispute Resolution For Cross-Border Electronic Transactions

Online dispute resolution (ODR) is a cost effective and convenient method of dispute resolution. Rather than depending upon the traditional litigation method, ODR provides an alternative and effective dispute resolution mechanism.

Commercial Transactions and Cross Border E-Commerce Transactions can be greatly benefited if disputes arising out of same are redressed through use of ODR rather than traditional courts. Further, dispute resolution of Cross Border Technology Transactions can also be effectively resolved using ODR.

However, there is a need to clarify the categories of Technology, E-Commerce and Cross Border Disputes that might be solved by using ODR, appropriate Procedural Rules for ODR, the possibility or desirability to maintain a single database of ODR Service Providers, and the issue of Enforcement of Awards made through the ODR process under the relevant International Conventions.

Here lies the true problem. Conflict of Laws is the real issue that has to be addressed as different Jurisdictions may have different Legal and Regulatory Frameworks in this regard. International Legal Standards for ODR are still missing. This is preventing International Harmonisation of ODR that is missing till now.

Even United Nations Commission on International Trade Law (UNCITRAL) has not achieved this task so far. This is the main reason why there is no coordination between UNCITRA, ODR and India. International Organisations like World Intellectual Property Organisation (WIPO) must further strengthen its Technology Dispute Resolution Services. Even EU India ODR Development Dialogue must also be initiated by both countries. In fact, EU has already planned to use ODR for Cross Border Consumer Disputes.

In the Indian context, ODR is facing severe Legal Roadblocks in India. We have no dedicated Legal Framework for ODR in India. Even an ODR Policy of India is missing. ODR in Asian Countries is still not popular.

At Perry4Law and Perry4Law Techno Legal Base (PTLB) we have been providing Techno Legal Technology Dispute Resolution Policies and Strategies. We have suggested a Technology Dispute Resolution Policy of India and ODR Policy of India.

We are also in talk with International Organisations and Institutions working in this regard so that Harmonisation of ODR Framework may be possible. We hope our Initiatives would be helpful for the International and National ODR Community.

Dispute Resolution Of Cross Border Technology Transactions

By
Praveen Dalal

Dispute Resolution in Cross Border Technology Transactions is an area that has tremendous potential. There are diverse natures of Information and Communication Technology (ICT) related disputes that can be effective solved using Alternative Dispute Resolution (ADR) or Online Dispute Resolution Mechanisms.

However, the crucial question is whether India is ready for Dispute Resolution of Cross Border Technology Transactions and E-Commerce Transactions? I am not talking about use of traditional Litigation Methods for the same. Of course, they are sufficient to resolve these Technology Related Disputes. What I am discussing here is use of ADR and ODR by Individual Panelists and Institutional Arbitration Institutions of India.

The present ODR Regime of India is facing severe Legal Roadblocks. We have neither Legal Framework nor Technical Expertise to engage in high profile and highly technical Technological Disputes. We have no Domain Name Protection Law in India and even Cyber Squatting cases are decided under the Indian Trademark Act, 1999. Even Institutional Arbitration Framework has not been adequately developed by India to resolve such disputes.

Even Domain Name Dispute Resolution in India through ODR is not very popular in the absence of International Harmonisation of ODR Framework. International Harmonisation of ODR is required that is presently governed by different sets of Rules and Procedures.

Just like Uniform Domain Name Dispute Resolution Policy (UDRP) is a Standard for resolving Domain Name Disputes, similar Standards and Norms must be established for all Technology Related Disputes resolvable by using ODR mechanism. Institutions like WIPO, United Nations Commission on International Trade Law (UNCITRAL), etc must think and work in this direction. We must also either amend the Indian Trademark Act, 1999 or enact a separate Cyber Squatting Law of India.

With a pro active approach at both National and International Levels, Technology related disputes can be effectively and economically resolved. We at Perry4Law and Perry4Law Techno Legal Base (PTLB) are working in this direction. Collectively, the exclusive E-Courts Training and Consultancy Centre of India manage the issues of ADR, ODR, E-Courts, Domain Name Dispute Resolution in India, etc.

We hope our initiatives would prove useful to all concerned, especially to WIPO and UNCITRAL.

ODR In India Is Facing Severe Legal Roadblocks

By

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.

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.