The present article is written by Syeda Khizra Rizvi, 5th year BBA LLB student, from Indian Institute of Legal Studies, Siliguri, West Bengal discussing about how online dispute resolution is the next future of dispute resolution mechanism.
Today in Indian judiciary scenario more than three crore cases are pending in Indian courts, where the ADR process has enormous prospects as application and development. Due to the growing saturation in litigation and continually improving ADR infrastructure in the country, the ADR process has reached a stage of unprecedented popularity and recognition. Various amendments have been made since the enactment of the Arbitration and Conciliation Act, 1996 (the Arbitration Act). The technological revolution nowadays has not left any aspect of life untouched. Thus, the advancement of ADR can also not be imagined without utilization of technology. Here Online Dispute Resolution (ODR) is the modern and digitized iteration of traditional Alternative Dispute Resolution with the main difference being the usage of technology and social media sources.
Essentially, Online Dispute Resolution is a mechanism for resolving disputes through usage of electronic communication and has future potential to make use of advanced technology like artificial intelligence sources.
Concept of ADR emerged as ODR
ODR has been labeled as the “logical and natural step” as it facilitates an efficient and speedy resolution of disputes in transactions in which they are quick and easy, with the provided rapid development regard to internet and online commerce. The concept of ODR is only two decades old, originating by an American professor named Ethan Katsh and Janet Rifkin, who wrote a book on this subject in 2001. Subsequently in the exploratory radar of world-renowned institutions such as the World Intellectual Property, Organization the Hague Conference on Private International Law, the United States Department of Commerce and others the concept has achieved global recognition and has successfully arrived. In a short period of time the process garnered a ready acceptance by governments of various countries. The reason behind the worldwide welcoming gesture of the concept is the increasing rate of international businesses
and arrangements and the incremental advantages that the concept offers over & above traditional ADR.
Noting the parallel need for mechanisms for resolving disputes and the sharp increase of online cross-border transaction arising, the United Nations Commission on International Trade and Law(UNCITRAL) agreed at its forty-third session to undertake the work in ODR. In international commercial transactions, UNCITRAL acknowledges the substantial opportunity for access to dispute resolution for both buyers and sellers. The UNCITRAL Working Group has deliberated on the creating ‘Procedural Rules for Online Dispute Resolution for Cross-border Electronic Commerce Transactions’.
In 2017, it also brought out the UNCITRAL Technical Notes on Online Dispute Resolution. Thus, the UNCITRAL is taking various steps to make the ODR process a far-reaching reality and effective.
Recent Litigation (ADR/ ODR)
Recently India there is no express provision in the current legal regime in India permitting ODR, there is also none creating an express prohibition or embargo against the process. Thus, following the principle “what is not prohibited is permitted” there is space for ODR within the Indian legal framework provided. In fact, The Indian legal framework, through Section 89 of the Code of Civil Procedure, 1908 (CPC) promotes and expose the use of ADR between parties and Order X Rule 1A of the CPC which confers powers on the court to direct the parties to a suit that they can choose any ADR method to settle the said disputes. Thus, the ambit of the provision is wide enough that can include ODR as well. Moreover, the scheme of the arbitration act provides considerable freedom to the parties with regard to the place and proceeding for dispute resolution as the Arbitration and Conciliation (Amendment) Act, 2015 also has an expansive outlook, allowing an arbitral tribunal to use mediation, conciliation or other procedures during the arbitration proceedings to encourage and empower dispute settlements.
Thus, in relation to the legality of proceedings carried out on or through electronic platforms and admissibility of electronic evidence, the Information Technology Act, 2002 read with the Indian Evidence Act, 1872 establishes that, electronic evidence can be produced and given legal recognition under the Indian legal system. The Apex court in the case of State of Maharashtra vs. Dr. Praful B. Desai held that the use of video conferencing to record witness statements, even the Arbitration Act enumerates that subsequently in an ADR process, when the award is declared; it can be exchanged via emails by sending scanned copies. This scenario has considerable legal backing and there are various cases in which the courts have upheld the validity of dispute resolution using electronic communication.
The Supreme Court in the case of Grid Corporation of Orissa Ltd vs. AES Corporation observed that, “when an effective consultation can be achieved by resort to electronic media and remote conferencing, it is not necessary that the two persons are required to act in consultation with each other must necessarily it together at one place, unless it’s a requirement of law or a contract between the parties” .Thus, it is reasonable to conclude that within the ambit of the existing legal framework in India, the ODR process comes well.
The ODR & ADR process is also especially suitable for India because the requirements of the country complement the advantages of the concept provided. One of the major benefits accruing to ODR is cost saving. In comparison to traditional litigation that is ADR, Online Dispute Resolution offers an opportunity of dispute resolution at a substantially lower cost. Currently, the economic and political environment in India is inclined towards encouraging small businesses, online start-ups and more. Thus, the lower cost advantage is extremely favorable for businesses and customers for whom price is the major impediment to justice procedure. Further, in a longer run, the growth of ODR would also facilitate achievement of legislative goal to make India a hub for international ADR. Thus, it can be said that the ODR process is already an emerging method with regard to dispute resolution in India as being a cheap, neutral, quick fix for small scale disputes and is an obvious choice for the new technology friendly India and the future of dispute resolution in India. Whereas, ADR Is the process provided for settling disputes without litigation and it also intended to reduce the costs, stress and formality associated with going to the court.
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