International Online Dispute Resolution

Commercial transactions have transborder ramifications. A person resident in country A may purchase a good from country B and make payment to country C. If a dispute occurs due to defect or impropriety of such good, multiple jurisdictions are involved. This makes the dispute resolution procedure costly, time consuming and highly unproductive.

These days’ alternative dispute resolution (ADR) mechanisms are considered more favourably than traditional litigation methods for resolving various commercial disputes. Further, with growing use of information and communication technology (ICT), online dispute resolution can also be an effective mode of dispute resolution.

However, International response to online dispute resolution (ODR) is still lukewarm. ODR has been increasingly seen as a good and viable option for commercial disputes resolutions. However, adoption of ODR at the national and international level is still not satisfactory.

Online dispute resolution (ODR) and international response is though improving yet international organisations like United Nations have to play a more pro active role in this regard. United Nations and online dispute resolution has seen a significant development in the recent past and more is expected in this regard. Similarly, ODR must be supplemented by other judicial technological innovative mechanisms like electronic courts.

Online dispute resolution in India is still in its infancy stage. ADR and ODR services in India are still evolving. Naturally, online dispute resolution services in India are still evolving. We have very few online dispute resolution centers in India. Further, Perry4Law Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India.

Similarly, e-courts in India have still not been developed. Of course, we have computerised some courts in India but mere computerisation of courts is not establishment of e-courts. A successful establishment of e-court in India requires managing all traditional litigation related issues in an online environment that is presently missing in India. Further, training of e-court staff is also required. We have a single techno legal e-courts training and consultancy centre of India and world wide managed by PTLB.

Clearly, ODR and e-courts need to be developed further at both national and international levels. Although work in these directions is in progress yet we need to increase the speed at which these developments are taking place. But the future of ODR and e-courts is definitely bright and they must be adopted and used at both national and international level.

International Response To Online Dispute Resolution

Internationally dispute resolution for commercial transactions is increasingly seen as an important aspect before starting any business venture at a particular jurisdiction. If a nation has bad reputation for dispute resolution through traditional litigation, foreign direct investment in and business development of that nation is adversely affected.

Online dispute resolution (ODR) is growingly seen as an effective alternative dispute resolution mechanism world over. Traditional litigation methods are time consuming, expensive and unproductive. ODR is not only speedier but is also economical and effective.

Online dispute resolution in India is still in its infancy stage. This is so because even the alternative dispute resolution in India is not free from troubles and procedural formalities.

However, success of ODR in India is still doubtful. To be successful, ODR in India needs urgent rejuvenation. This has happened because legal enablement of ICT systems in India is missing. ADR and ODR services in India are still evolving. There are very few ODR service providers in India.

Naturally, online dispute resolution services in India are still evolving. We have very few online dispute resolution centers in India. Further, Perry4Law Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India.

Techno legal ODR services have become necessary due to growing use of information technology for business and commercial purposes world over. For instance, ODR and cross border e-commerce transactions are also interrelated. Similar is the case regarding dispute resolution of cross border technology transactions.

Similarly Online dispute resolution in Asia is still evolving. Online dispute resolution in Asian countries is largely confined to a single or two countries that also to a limited extent. Clearly online dispute resolution standards of practice for India and Asia need to be developed urgently.

However, nothing can strengthen ODR more than international efforts and international coordination activities. International legal standards for online dispute resolution (ODR) and international harmonisation of ODR is urgently required.

United Nations can play am important role in international development and international harmonisation of ODR. United Nations and online dispute resolution are closely related in this regard. In fact, UNCITRAL, ODR and India are interconnected.

Thus, it is clear that whether it is India, Asia, Europe, United States or any other international country or territory, ODR would play a very important role in effective, economical and speedier dispute resolution. Of course, United Nations has to play a more pro active role in this regard at the international level.

Dispute Resolution In Technology Transactions

Technology transactions are being entered into and transacted world over. These technology transactions have global impact and global ramifications. However, when it comes to disputes resolution, global transactions have their own problems.

Since there are numerous jurisdictions involved in technology transactions, it is always better to decide in advance the resolution method of any possible future technology transactions disputes.

Dispute resolution of cross border technology transactions is a complicated process if we adopt traditional litigation methods to resolve them. Dispute resolution in technology transactions and dealings requires an effective, timely and cost effective mechanism. Traditional litigation is definitely not the place to achieve these objectives.

Obviously, we need an effective alternative to traditional litigation methods to resolve cross border technology transactions and dispute resolutions. Alternative dispute resolution (ADR) mechanisms like arbitration, conciliation, mediation, etc can be used effectively to resolve these technology transactions disputes.

However, even ADR has its own limitations as compared to technology driven dispute resolution mechanisms. These days online dispute resolution (ODR) is increasingly considered as a viable option for resolving various disputes. Technology transactions disputes can be effectively resolved using ODR techniques.

For instance, online dispute resolution (ODR) for cross border e-commerce transactions is already been used to resolved small value disputes. Very soon ODR may be extended for high value disputes and other category of disputes. Similarly, domain name disputes resolution is also effectively resolved through ODR mechanism by many individuals and organisations world over.

ODR at the international level needs to be strengthened. For this we need an international harmonisation of ODR legal framework as well as suitable policies at the national level. Efforts in this direction have already been undertaken at the international level and very soon we may see some development in this regard.

Privacy Laws In India, Dispute Resolution And ODR

Privacy rights are central to almost all the things and concepts. The same applies to dispute resolution in general and online dispute resolution (ODR) in particular. When parties submit their personal details, confidential information and other sensitive matter, it become utmost important to protect all such information.

We have no dedicated privacy laws in India and data protection laws in India. Naturally, this is a troublesome and undesirable situation. The supreme court of India has interpreted Article 21 as empowering Indian citizens with right to privacy in India.

However, despite this constitutional protection, various governmental projects in India are opening ignoring Article 21 and are clearly violating the same. This is happening because we have no national privacy policy in India.

Further, we have no privacy laws in India as well. Although some privacy guidelines have been issued by one or two departments of Indian government yet they are far from satisfactory and cannot replace a well structured privacy law of India.

Privacy rights in the information era require a totally different outlook. In fact, privacy rights form an essential part of civil liberties protection in cyberspace that India is presently ignoring.

For instance, consider the projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc.

They must be supported by a techno legal framework and must be civil liberty complaint. Presently, none of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny. These projects are openly violating various human rights/civil liberties, including right to privacy.

It is high time to formulate privacy laws in India so that constitutional freedoms and rights are not considered to be just legal jargon we no actual implementation. Further, it is also required so that online commercial dispute resolution in India can survive and grow. The sooner privacy laws are formulated in India the better it would be for all stakeholders.

Online Commercial Arbitration In India

Arbitration is a cost effective and expeditious dispute resolution mechanism. A majority of commercial disputes are resolved through the mode of arbitration. International commercial arbitration has also become an emerging trend these days. Generally, an arbitration clause is incorporated in various contracts and commercial contracts that prescribe resolution of a future dispute through arbitration.

Traditional litigation is not a productive mechanism to resolve disputes as it is costly and time consuming in nature. Thus, there is a gradual shift from litigation to arbitration in commercial matters.

A new aspect has been added to commercial dispute resolution and commercial arbitration by the information and communication technology (ICT). ICT has introduced a novel dispute resolution mechanism known as online dispute resolution (ODR). Although ODR in India has still to keep a pace yet it has been used in developed countries for many purposes, especially for resolving cross border e-commerce disputes.

At Perry4Law Techno Legal Base (PTLB) we are not only providing training and courses on ODR but are also actively using the same for contractual and commercial disputes resolution in India. In fact, Perry4Law and PTLB have provided the exclusive technology dispute resolution policy of India and ODR policy of India so that ODR may gain popularity and a wider acceptance in India.

PTLB has supplemented its ODR initiatives with other techno legal initiatives. The chief among them are e-courts research and training centre, digital evidencing centre, cyber forensics centre, etc. We hope our initiatives and efforts would be beneficial for the growth of online commercial arbitration in India and world wide.

44th Session Of United Nation Commission On International Trade Law (UNCITRAL) In Vienna

United Nations Commission on International Trade Law (UNCITRAL) is currently holding its 44th Session from 27 June to 8 July 2011. It would discuss many important aspects having a direct bearing upon International issues.

This is a very important Session as it is covering many crucial issues that have Trans Border implications. Further, UNCITRAL is also acting as a “Harmonisation Platform” where International Norms and Regulations are formulated for wider international adoption. Among other issues, the finalisation and adoption of draft texts on procurement and insolvency will be key topics for consideration.

The revised text of the UNCITRAL Model Law on Public Procurement, to be considered by the Commission, extends the application of the Model Law to all public procurement, streamlines and strengthens provisions in a number of areas, in particular on remedies and enforcement, and includes new provisions, such as on e-procurement, abnormally low submissions, conflicts of interest, electronic reverse auctions and framework agreements.

The revisions are aimed at assisting States in formulating modern procurement laws where none presently exist or modernising and enhancing their existing procurement law. While developing countries and States whose economies are in transition may find the text of particular benefit, its provisions are intended to be applicable to all States.

Further, another important issue that would be discussed at this Session pertains to finalisation and adoption of judicial materials on the UNCITRAL Model Law on Cross-Border Insolvency. If agreed by the Commission, it is expected that the updating would be undertaken by the Secretariat in consultation with judges and, as appropriate, other insolvency experts.

In the area of technical assistance, the UNCITRAL Secretariat will also inform the Commission of recent developments with regard to the potential establishment of UNCITRAL regional centres and activities to be undertaken by such centres.

The agenda for the meeting also includes reports from working groups, including progress reports on the preparation of texts on transparency in treaty-based investor-State arbitration, online dispute resolution for cross-border electronic commerce transactions and registration of security rights in movable assets.

The coordination of UNCITRAL's work with that of other international organisations active in the field of international trade law, its role in promoting the rule of law, its possible endorsement of the revision of the ICC Uniform Rules for Demand Guarantees and its potential future work are also scheduled for discussion. This is an important session and its outcomes would be very relevant for numerous aspects of International Trade and Dispute Resolution.

Online Dispute Resolution Standards Of Practice For India And Asia

Online dispute resolution in India (ODR in India) and Asian countries has yet to pick a pace. There is a lack of awareness about the concept of ODR in general and its use in particular.

At Perry4Law and Perry4Law Techno Legal Base (PTLB) we have already provided technology related dispute resolution policy of India and ODR policy of India that Indian government may consider and use while enacting laws regarding ODR and use of technology in dispute resolution.

Perry4Law and PTLB now wish to provide their suggestions regarding the standards of practice that may act as guidelines for practice across the spectrum of ODR in India and Asian countries.

We believe that ODR may be used for a wide variety of purposes and at various stages of dispute resolution. It may be used even before a dispute arises and may be helpful in removing the doubts and difference that may ultimately become a dispute.

We believe that the standards of practice must be not only “technology neutral” but also free from technical and legal complexities. “Party autonomy” must play the decisive role in the use and adoption of ODR in India and Asian countries. If parties prefer to use ODR for dispute resolution, technical and legal requirements must not come as hurdles.

Further, having multiple laws at international level is not conducive for the use of ODR. There is an urgent need to formulate “international standards” regarding use of ODR. Further, “international harmonisation” of ODR principles is also required.

The ODR system must be easily accessible to the parties to ODR mechanism. Effective use of e-governance and language translation service could help in this regard. ODR must also be easy to use and use friendly. Public awareness in this regard is a must and the same must be accompanied with a good techno legal ODR training of the stakeholders. At Perry4law and PTLB we not only spread awareness about use of ODR but are also providing research, education and training regarding ADR and ODR. We are also engaged in ODR and e-courts skills development in India.

Access to justice becomes a major hurdle while using technological solutions like ODR and e-courts. The marginalised segment of population must be made aware of how to use technology for ODR and e-courts purposes.

ODR mechanisms must be transparent and fair regarding the identities and affiliations of the ODR providers, the identities and affiliations of the interveners and managers of the ODR systems, and the security efforts undertaken by the ODR providers to safeguard user data and identity.

Jurisdictional issues and place of dispute resolution must be clearly specified and conveyed to the parties to the dispute. The ODR clauses in legal and non legal agreements must clearly specify the usage of ODR and a particular ODR service provider or panelist. It is generally claimed that the place where the ODR process occurs is where the ODR platform is.

ODR service providers must disclose their physical location and minimum contact details. Of course, without a “professional relationship” being established, other contact details should not be disclosed to prevent “spam communications”.

ODR panelists and service providers must have good techno legal skills and expertise to engage in ODR dispute resolution. A person or institution possessing both technical and legal knowledge (techno legal skills) is the ideal institution or individual for ODR purposes. ODR platforms must also ensure that in cases of need, expertise of professionals from various fields is available on request.

Bona fide works and efforts of ODR service providers and ODR panelists should be legally and equitably protected under all the jurisdictions of the world. A clause in this regard must be incorporated in the ADR and ODR laws of various countries as well as in the agreement to hire ODR services of an individual or institution dealing in ODR service providing.

ODR service providers must ensure privacy, confidentiality and data security of various details, data, information, etc as required by national, regional and international law.

These are just basic level suggestions and more detailed suggestion and policies would be provided by Perry4Law and PTLB in due course of time. We are also working in the direction of providing an ODR legal framework for India that can be adopted by other Asian countries, with or without modifications.