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INTRODUCTION
Humans as a whole cannot live in a society without being dependent on another. Interdependence among the people in a society creates numerous advantages but at the same time acts adverse as it might results in conflict of opinions among them and result in a dispute. Disputes are conflict or clash of interests which arise out of legal rights and duties. With increase in inter connected business transactions, it has been found continually difficult to be able to raise a dispute with a party, fight it in court halls, and get the final settlement. There has been an increase in inter-dependency between various business entities which necessitates continued business relationships for smooth flow of work. A single dispute can no more be a reason for completely ending commercial relationships with any particular person. However, in case of a dispute, any approach to the courts causes such severance of relationship which both parties wish to avoid. This led the parties to look for alternative processes which are more polished for resolving disputes and found the key to the door in certain interest-based solutions collectively known as alternative dispute resolution The use of ADR found favour in furtherance of business interests rather than enforcing legal rights in a strict way which may tear up an existing relationship among parties. It shows a movement from the jurisdictional theory to the party autonomy concept. As the concept gained acceptability at international level, rules were framed to make it more convenient for the parties to avail the facilities on an international level The 1958 New York Convention on enforceability of Foreign award, UNCITRAL Model Law, 1985 etc… pushed the concept of ADR further making it a more positive and realistic approach to dispute settlement. But all of a sudden things changed. Rapid increase in commercial transaction as a result of globalization required dispute settlement without the parties actually meeting in a particular place. The introduction of computers helped in inputting raw data and information which could then be processed into meaningful reports. Now, the Internet has taken up the vital role of a free information dissemination tool. It has acted as a communication tool and also a medium of commerce and trade. Two important changes have resulted as a consequence of this change. Firstly, there has been a universal acceptance of the use of computers and the Internet. Increasingly, people are getting 'online' and more numbers are making use of information technology. Computers have become a part of daily life. The concept has gained acceptance in a variety of arenas including, research, entertainment, communication, trade and commerce. There is hardly any area which has not been touched or effected by computer technology. Secondly and more importantly is the fact that the commercial world has accepted computer technology not only for the purpose of collection, assimilation and processing of data and information but rather made it as a tool for furthering their own business interests. This has been made possible by the wide usage of the Internet and more and more people getting 'online'. The phenomenal growth of e-commerce makes it clear that commerce via the Internet has been accepted at large both by the business world and the consumers. These changes also signify the possibility of rise in clashes in interests of the parties, that is, rise in disputes. More the people tend to get online and more the commercial world prefers the Internet as its medium to reach to the consumers and sell its products and more the consumers are willing to purchase
goods and services on the net, there is a likelihood of certain disputes which inevitably arises in such commercial transactions from time to time. Therefore, with the coming and use of information technology, another area of dispute has sprung up which needs to be looked into and tackled. These kind of disputes have their own variety of legal hurdles like the issue of jurisdiction or the question of the law applicable to the dispute due to the cross-boundary nature of the Internet. Due to these issues popping out, the use of online dispute resolution has become the preferable mode of dealing with these disputes. All though ODR is a platform which can be benefitted by incorporating it in day to day court proceedings my scope of usage of the term in this project is mostly restricted to use of ODR as a means to settle disputes in a non adverserial setting MEANING OF ONLINE DISPUTE RESOLUTION The terminology 'online dispute resolution' (ODR) on the face of it have two meanings. Firstly, it can be viewed as resolution of online disputes. It would include the solving of by any means, either online mechanism or offline method including court adjudication disputes which essentially arises from an online transaction. This would include a dispute like a defect in a computer software purchased online where the payment was made online through a credit card and the software was immediately transferred to the consumer using the same online environment. Secondly, ODR can be looked into from the perspective of method of solving of a dispute using technologies available which makes it possible to solve a dispute remotely. This means that new ways of solving a dispute are developed by making use of the online environment which can be applied to solve any kind of disputes. ODR in this context would include online negotiation, online mediation, online arbitration etc… This project is focused on ODR as a tool for solving of any kind of dispute by using technology available online and not in the sense of resolution of online disputes only. Therefore, ODR covers a variety of ways in which a party, by making use of the 'online environment', solves its dispute or clash of interests. Online dispute resolution (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. Online dispute resolution (“ODR”) is conceived as a means to achieve some of the most powerful legal ideals of the Western legal tradition, which include: (1 ) Legal Certainty : In taking individual plans, decisions, and choices everyone is entitled to know what the law is in advance. (2) Access to Justice : Everyone involved in a dispute shall be entitled to an easily accessible redressal mechanism that provides for a timely resolution and effective remedies at reasonable cost. ODR is concerned with the peaceful resolution of disputes between private parties, and, secondly, with the prevention of such conflicts through the provision of legal certainty. National legal systems fulfill the former function by offering plaintiffs to litigate disputes before state
Later due to the boom in internet dependent businesses, domain name disputes became prevalent. Hence in 1998 The Internet Corporation for Assigned Names and Numbers (ICANN) was a body to introduce ODR. ICANN brought out the UDRP online arbitration process to address these disputes arising due to domain names. Another big development in the field of odr was from the government side in the European union. The ODR Regulation (Regulation 524/2013) came into force in the European Union (EU). The regulation provided for the EU Commission to establish a free, interactive website through which parties can utilize alternative dispute resolution (ADR) in connection with online transactions. However, the use of ODR requires the consent of the parties to the transaction. Member States in the EU brought into force the legislation to comply with the ODR regulation, which, for the most part, took effect from January 2016. The Online Dispute Resolution has been accessible to consumers and traders as at the 15th day of February
This online dispute resolution platform is being used primarily during disputes arising out of trade and commerce. On agreement to adopt ODR methods, consumers or traders are required to complete an electronic complaint form which is available on the ODR Platform. The parties are free to choose any ADR entity. ADR entities are bodies or institutions that comply with the quality requirements established by the ADR Directive of the European union commission and which are included in the national lists as ADR entities or institutions. The whole procedure of ADR entity is online wherein 90 days period is taken to reach an outcome. The binding nature of the decision of the ADR entity will depend on the form of ADR chosen (mediation, arbitration, conciliation, etc.). While dealing in buying and selling across EU, traders and consumers are required to know the existence of ODR Platform. Also, the the European union has initiated several awareness programmes for the consumers and traders regarding the existence, use, accessibility etc.… of such online dispute resolution mechanism The United Nations Commission on International Trade Law (UNCITRAL) established an ODR Working Group which prepares periodical reports after research on the relevant subject. In 2010 the Working Group started to work on legal standards in this field; and in 2011 it developed its work on draft procedural rules, with a focus on low-value, high-volume cross border electronic commerce transactions. USAGE OF ODR IN AN ADVERSERIAL SETTING Even though throughout the world usage of odr is not incorporated in an adversarial setting, certain jurisdictions have certainly taken up the game to incorporate ODR wherever they can. the European Commission has produced a regulation for a European Small Claims Procedure (ESCP) which provides a procedure for setlling small claims with the help of online dispute resolution. The ESCP is predominantly a written procedure that deals with claims under €2, arising in cross-border disputes. The objective of the ESCP is the creation of a cost-efficient procedure applicable to small value claims in cross-border disputes. The Regulation allows the use of new technologies in transferring information and evidence between the courts of the different member states. But it will be the EC Member States who will decide, through their own regulations, which specific means of communication are acceptable in their courts.
But since the ESCP is a regulation and not a directive, it is argued that it has left too many aspects to the discretion of member states, it has created a vagueness for mutual and collective use of the regulation by all the member states. At present, India has 33.47 million cases pending in district courts, 4.46 million in High Courts; additionally, there is a 21.4% vacancy in district courts and 35.6% in High Courts. So, India requires an online administrative infrastructure for boosting the speed of court processes. Basic changes such as payment of fees, e filing of evidence etc.… can be done in the beginning and later can be improved. In 2005, when the action plan for implementation of an information and communication technology (ICT) in the Indian judiciary was released, the idea was that, within five years of implementation, the judiciary would have state-of-the-art ICT infrastructure. The plan, way ahead of its time and talked about video-conferencing solutions, e-filings, etc. Although the government initially seemed quick and active in implementing it , and within two years, had announced Phase I of the e-courts project, it has been 13 years since, and the judiciary doesn’t have the promised ICT infrastructure. ESSENTIALS OF AN INSTITUTIONAL ONLINE DISPUTE RESOLUTION SERVICE While ADR can work in an ad hoc environment, ODR necessarily requires an institutional backup.. This means there should be an organizational set-up which offers ODR services. It should have the following features: (a) A proper administrative infrastructure which would support the ODR services. (b) An up-to-date and user-friendly computer interface with a strong back-end support to enable the user to make the best use of the services being offered. (c) A panel of arbitrators, mediators, etc. who are impartial and independent and enjoy the confidence of the industry at large which will be required using the services being offered. It is of utmost importance that any institution providing ODR services must be able to generate trust and confidence among the users. Generating confidence online has been a problem every person wanting to create offer services on the internet has been facing. The primary reason for failure of many e-commerce websites offering various commercial services has been lack of trust.. The primary concern for any user of such online services is, apart from the authenticity and reliability of the service provider, possibility of fixing the responsibility on a single person in case of any deficiency of services. In such situation, not only the online service institution should be backed by an offline set-up, it should also follow the disclosure-based approach which further helps in creating e-trust and e-confidence among the users of the online system. Thus, to fulfill all these requirements the parties may find it very difficult to set up and undertake an online dispute resolution on adhoc basis as they may not possess the required infrastructure, difficulty in coordination etc… KINDS OF DISPUTES HANDLED IN AN ODR ENVIRONMENT ODR does not merely imply the use of online medium to solve disputes. It is a catalyst to help people solve their disputes. The dispute can arise either based on an offline affair or transaction
Disputes between the business and the Internet Service Provider (ISP) or webhosting services provider, including disagreements over interruptions in service, breach in data security etc. Business-to-business (B2B) disputes between the business and its suppliers such as non- performance of contractual obligations, misrepresentations, and complaints from customers regarding services provided by suppliers. Online transactions wherein ODR may be employed to resolve disputes such as: Breach of Contract of business to consumer, consumer to consumer or business to government in matters such as unsatisfactory Service, payment Disputes, mismanagement of Goods ordered and delivered, poor performance of contract, misrepresentations, breach of the privacy policy, and breach of security of confidential information. It is between the business and its customers that lay the greatest possible scope for disputes. Non contractual disputes: These are the common kinds of non-contractual disputes that may arise in an online enterprise. Copyright – The Company might be liable for copyright infringement if it uses copyright material in excess of fair use, and without permission. Data protection – The Company may be liable for sharing or revealing confidential data on customers, as breach of Privacy even when the contract doesn’t specifically cover it but is against law. Online Defamation – The Company may be subject to defamation suits for defamatory material posted online. Like feedbacks on websites. Competition law, Domain Name Disputes – Business may be subject to trademark infringement suits, if it infringes a registered or otherwise legally recognized trademark. If the company has registered a domain name which corresponds to a registered or common law trademark, it may be subject to a complaint under ICANN„s Uniform Domain Name Dispute Resolution Policy (UDRP) ADVANTAGES OF ODR Flexible: ODR is a, flexible tool of dispute resolution which is not governed by strict rules of procedure and evidence. This allows the parties to design or participate in a process which can be molded to suit their needs and encourages a mutual and peaceful approach rather than an adversarial approach. Reduced litigation costs : The costs of the process or compensation given to the neutral evaluator are generally borne equally by all parties, providing all parties with an equal stake in the outcome and an equal sense of ownership. Also, expensive court fees and increase in expenditure due to lengthy processes in traditional form of settling disputes in the form of adversarial proceedings can also be avoided. More efficient pre-hearing preparation ODR’s functionality improves the efficiencies in pre-hearing and hearing materials. An online document management system makes it much easier to manage documents, including when searching for, sharing materials between the client, counsel, experts and witnesses of fact. The lines in a hearing material can be hyperlinked to the
document evidencing and backing up such statement. These help in improved efficiency in the way the dispute resolution takes place. Also while the hearing takes place for example in majority of the ODR platforms during cross- examination, each document referred to by counsel appears on the screen in front of the witness almost instantaneously, enabling the cross-examiner to launch a series of questions, free from the distraction, disruption and delay associated with the witness (and tribunal and opposing counsel) locating the document referred to in a hard copy bundle in traditional form of arbitration or adversarial processes. High volume: ODR is appropriate option for high-volume transactions as it often allows for a timely, cost-efficient and efficient resolution to problems where the amounts in dispute may not be sufficiently high to justify the cost of an adversarial proceeding or even a physical mode of conducting an ADR. Odr also benefits the parties where the geographical location of the parties to the dispute act as a hindrance especially when the parties are located in two different countries. odr solves this problem by giving the opportunity for the parties to settle their dispute by merely sitting in front of their computers ODR also is appropriate where there are sensitivities between the parties that may be aggravated by being in the same room. For example; matrimonial disputes ODR may allow for the participation of parties who could not otherwise attend an in-person meeting due to a severe disability. Confidential : ODR is confidential (unless agreed otherwise by the parties). The process is appropriate when confidentiality is considered important or necessary to the parties. The parties utilizing ODR mechanisms usually do so on the basis that they can discuss matters freely in the expectation that they will be disclosed, neither publicly, nor to a court. DISADVANTAGES OF ONLINE DISPUTE RESOLUTION All parties would be required to have adequate technology to participate in an ODR Process. Parties without adequate technology may be at a disadvantage or unable to fully participate. ODR is a less persona l form of dispute resolution as the parties are not in the same room, and often all of the discussions are in writing in the form of mails, or video conferences etc.… Here the human touch of dealing with a dispute in person isn’t available Also, ODR even though ODR platforms or other technologies used in ODR processes boast themselves regarding the confidentiality and encryption mechanisms put in place for transmitting information between one party to another, there’s always a possibility of data theft and hacking and various other forms of illegal cybercrimes. For example, one such technique to gain unauthorized access is spoofing, the unauthorized person assuming the identity of an existing authorized user to access confidential information
COMMUNICATION MODES IN ODR
One of the advantages of online environment over physical environment is the availability of various communication modes to a user. It becomes important to select the appropriate mode to conduct the ODR process since different kinds of disputes require different types of modes. E-mail: It is one of the most common and easiest ways of communicating today. It permits the sender to not only send messages but also attachments like, text files, graphic files, audio/video files, etc. The sender of the e-mail can send it to one or more persons using the "To:" or "CC:" option or even send a copy to a third person without any knowledge of the other recipients of the e-mail using the "BCC:" option. E-mail is useful for filing of pleadings, documentary evidence, communication between the ODR institution and parties on administrative issues, etc. This mode is also helpful when, in case of mediation or negotiation, the parties are unable to instantly take decision. For example, in case of an online mediation of a matrimonial dispute, a situation might arise where, due to family and social norms, one party, maybe the wife, needs to consult her parents before she can answer back. In such a situation, interacting through e-mail gives her sufficient time to think over the matter and also consult the elders of the family before giving a reply. Discussion boards: These platforms are used when there are many persons wanting to give their views on certain issue or issues. Discussion boards are a collection of messages from different people at the same place so that one can, at a single glance, view the entire discussion. Best example would be google classroom, slack etc.… However, this kind of communication too poses a problem specially if there are multiple issues with multiple parties involved. Each party will then want to give its views on each issue as per its convenience. Then rather than a simple discussion board, we switch over to the thread-discussion board. For example slack is beneficial for threaded discussion where a party can thread their reply to a issue In this system, if A gives his comment on Issue I and then B gives his comment on Issue II and then C on Issue III, if D wants to give its reply to the comment given by A on Issue I, D's reply would be threaded with the A's comment and would be seen under A's comment itself rather than at the end of the discussion. Therefore, on each issue, all comments and replies come under one heading to give a clear picture as what the parties think about that particular issue. This kind of communication mode would be useful in a commercial dispute where various issues are involved. Instant messaging: As the name suggests, it instantly sends the message to the recipient. In this mode, the persons who are sending messages are all online and connected to each other through a common instant messaging system like WhatsApp They can open a common window on which they can have a discussion and can even open up separate individual windows to talk to one or more persons privately. Messages are sent and received immediately. This mode is suited to ODR systems like online mediation where the mediator and both the parties can have a joint discussion. However,
if the mediator wishes, he can also have a private session or with a single party, of course, after informing and taking permission from the other party. This mode is also beneficial in in-house ODR services of companies where the consumer and the company's representatives can instantly communicate with each other and problems can be solved. For example, in the SCC case discussed above, this can be a feasible solution. However, again, not only should the company representative have adequate data available at hand to solve the dispute but should also be authorized to do so. Audio conferencing The purpose of audio conferencing is to enable the users communicate real-time. As one speaks, the other person can hear. With the help of advanced telephonic technology available, we can have audio conferencing with more than two persons talking and listening at the same time, or a group of individuals on either side having a discussion. It is useful for almost all forms of online dispute resolutions. The mediator or the arbitrator can discuss the matters over phone with the parties or the parties themselves can talk with each other during the process of negotiation. Video conferencing Video conferencing is the best mode for ODR. Combining the advantages of audio and visual facilities, it is only one which goes somewhere near the face to face environment. This mode enables the players of the system to see and listen the others at the same time and also able to respond. This mode is particularly useful in case of oral arguments as the video conferencing makes it feel as if the parties are presenting their arguments face to face. The problem, however, at present is of lack of required bandwidth to be able to have a smooth and uninterrupted video conferencing especially in underdeveloped and developing countries KINDS OF ODR MECHANISMS
- Blind bidding or blind negotiation : 'Blind bidding' or 'blind negotiation' is one of the most innovative dispute resolution services currently available online. The common characteristic of these processes is that the parties submit monetary offers and demands which are not disclosed to the opposing party but are compared by computer in 'rounds'. If the offer and demand match, fall within a defined range (e.g., within 5% of each other) or overlap, the case is settled for the average of the offer and demand, the matching amount, or the demand in the event of an overlap. If the claim is settled, the participants are immediately notified while online or by e-mail.5 For example, cybersettle.com offers such service
- Online negotiation: An ODR service provider which is mostly an institution providing alternative dispute resolution services, to help the parties reach an amicable settlement, creates an online environment. This
When the hearing is opened, each party presents their case and opposition to the opponent's arguments by e-mail. The arbitrator may pose questions to both sides and, on the last day of hearing, the parties may submit final arguments by e-mail. The arbitrator then closes the hearing, considers all evidence, and renders a decision within twenty days which is sent by postal mail. Online arbitration through video-conferencing Online arbitration with the help of video-conferencing is considered the closest to Face to face physical mode of arbitration. It involves the use of video-conferencing to conduct the arbitration process. For example, The CAN-WIN Internet conferencing system allows registered participants to log into an electronic conference room from anywhere in the world using standard browser software. A list identifying all parties present appears on each participant's screen, and clicking on a participant's name opens a window to compose e-mail to that individual. There is also an area on each participant's screen to type messages to all participants. When sent, these messages immediately appear on the screen of all parties, identified with the sender's name and time. Participants on one side of a dispute who are in different locations may also message privately with each other and/or with the mediator during an online session. Two electronic conference rooms allow break-out sessions, during which the neutral may communicate with both rooms but parties in one room may not communicate with parties in the other. For ex a mediator A will, be able to communicate with parties B and C but the parties won’t be directly able to interact with each other Online public opinion In this kind of ODR, opinion is sought from the general public by posting the information gathered by the parties online (of course, after obtaining the parties' consent). For example, a platform called ILEVEL provides such service where ILEVEL members can submit complaints against vendors and their desired solutions online. This information is forwarded to the vendor by ILEVEL, and held confidential until the parties have had an opportunity to reconcile. Failing a reconciliation, and with the member's authorization, all information gathered is posted online. The online public can then review the dispute and express their views and comments in favor of the member or vendor. Based on which the parties can mutually reconcile their disputes Peer jury & panel jury ODR institutions also offer online 'Peer Jury' and 'Panel Jury' processes to help in the evaluation and resolution of disputes. In Peer Jury online trials, volunteer jurors select the cases they would like to decide, review the parties' claims, pose questions and ultimately give their verdicts. The parties receive a summary including the number of votes cast, the median award and a compilation of juror comments. In Panel Jury trials, the parties choose specific jurors. Parties can decide whether the verdict of the jury will be binding on them or not. For ex iCourthouse.com is an Internet courthouse. It is an online courthouse where you can present your disputes for trial before a jury of your peers. The idea is to agree beforehand to submit the dispute to ICOURTHOUSE where the jury will give its verdict. One can present his claim and the other side can present his defence. Then, the dispute is judged by a Peer Jury that
is any person who wishes to act as a juror on the Internet. There can be any number of jurors. The dispute can also be put forth before a Panel Jury which is selected by the parties themselves. They are given access to the plaintiff's and defendant's opening statement, evidence and closing statement. Thereafter, the juror is required to give his verdict. One can look at the verdict delivered by the other jurors. The, parties can agree whether to count a majority, two thirds, or what proportion of the verdicts will constitute a decision. The trial book shows all the verdicts entered so far, juror comments, and the verdict showcasing majority opinion of the jurors Chargebacks (as a method for dealing with e-commerce disputes) One of the main focuses of e-commerce up until recently has been related to secure payments. Chargebacks is a remedy used to reverse transactions made with credit or debit cards when a fraudulent use has occurred, or when there is a violation of the contract terms. This method is very popular among online consumers since this is the main mechanism to transfer money online. In addition, consumers are not required to give evidence to cancel a payment. The vendor has the burden of proving that the merchandise or service was given according to the contract terms. Once this is proved the bank makes effective the payment to the vendor. Chargebacks are largely used around the world by banks and the main credit card suppliers i.e. Visa, MasterCard and American Express. Yet, the coverage of debit and credit cards varies considerably amongst different countries. Commonly, debit cardholders have fewer protections than credit card holders, but it also varies depending on the jurisdiction. It is then not surprising why credit cards are the major source of payments for consumers in e- commerce. They provide a remedy that reverses all transactions when a fraudulent use has occurred, or when there is a violation of the contract terms. However, this method has limitations; it offers one single remedy (the return of the payment), and not all disputes imply a breach of contract or fraud. Similarly, online payment providers, like PayPal.com, retain temporarily the money paid by a buyer when the latter makes a complaint within 45 days after the payment was made. PayPal.com holds the money until the dispute is settled, but only in those cases where the merchandise did not arrive, or the description of the product was significantly different from the product itself. In these circumstances PayPal.com acts akin to an online arbitrator. However, in those circumstances where the seller takes away the money from his account before the buyer makes the claim, PayPal.com will not be responsible for the buyer's loss. Despite this, PayPal is in a very strong position since in most cases it is able to freeze the amount of money and resolve the dispute providing an instant and effective enforcement. Overall, chargebacks intend to balance the inequality of power between consumers and businesses. It is regarded as a very efficient tool for consumers because the speed, accessibility and lack of charge for their clients, who would just have to notify their banks or card issuers to cancel a transaction. PROMINENT ODR PLATFORMS USED IN INDIA
- lack of rights or legitimate interest in the registered domain name;
- bad faith in the registration and use of the domain name. Similar to the UDRP in India INDRP deals with all domain name disputes which have.in as their generic top-level domain name but the UDRP has disputes similar to those present in disputes arising in e-commerce transactions. The main worry is that the evaluation the panel decisions often shows a lack of unanimous consensus in the interpretation of the UDRP. This may be due to a number of reasons, such as the lack of an appellative review and panels composed by members from a multitude of jurisdictions and informed by different legal traditions. On the other side, it is undeniable what ICANN with the UDRP has achieved in developing an effective ODR procedure. The UDRP providers have dealt efficiently with over 30,000 domain name disputes. Their success derives from two aspects: First, the UDRP deals only with blatant disputes, which are abusive registrations made in bad faith in order to take advantage of the reputation of existing trademarks. Secondly, it has incorporated a self-enforcement mechanism, which transfers and cancels domain names without the need for judicial involvement. This is a positive accomplishment for the development of e-commerce because it favours consumers' confidence in the Internet by reducing the number of fraudulent registered domain names. The RBI has announced the introduction of Online Dispute Resolution (ODR ) system for resolving customer disputes and grievances pertaining to digital payments, using a system-driven and rule-based mechanism with zero or minimal manual intervention. As a step in this direction, authorized Payment System Operators (PSOs) – banks and non- banks – and their participants are hereby advised to put in place system/s for ODR for resolving disputes and grievances of customers. authorized PSOs shall be required to implement an ODR system for disputes and grievances related to failed transactions in their respective payment systems by January 1, 2021.If the grievance remains unresolved up to one month, the customer may approach the respective ombudsman. The Reserve Bank of India already has the Ombudsman Scheme for Digital Transactions, 2019 in place. It is an expeditious and cost-free apex level mechanism for resolution of complaints regarding digital transactions undertaken by customers of the System Participants. For redressal of grievance, the complainant must first approach the System Participant concerned. If the System Participant does not reply within a period of one month after receipt of the complaint or rejects the complaint, or if the complainant is not satisfied with the reply given, the complainant can file the complaint with the Ombudsman for Digital Transactions within whose jurisdiction the branch or office of the System Participant complained against, is located. E CONFIDENCE OF THE ODR SYSTEM One of the greatest concerns for an ODR institution is whether its services will be accepted at large by the online public. At the same time, one of the fears of the online user is whether the online institution is trustworthy. After all, if one is agreeing to arbitrate through an ODR institution, the very thought that the online arbitrator's decision would be binding on the person
and can be enforced as a decree of the Court, is in itself very scary. The parties would never physically see the arbitrator and there is always a thought of partiality and bias. It is, therefore, a must that the ODR institution is able to generate e-trust and e-confidence among the users of the online system. To aid this process the American Bar Association Task Force on E-Commerce and ADR proposed Guidelines and Recommended Best Practices by ODR Service Providers to assist the party to a dispute make an informed and intelligent decision.
- Transparency and proper means of providing information All information and disclosures should be accurately and completely stated, should be presented as clearly and simply in identifiable and accessible formats, and should present the most important points in an appropriately conspicuous manner. It should be printable and able to be downloaded electronically.
- Minimum disclosures ODR providers should disclose the minimum level of information like contact and organizational information, terms and conditions and disclaimers for the service, explanation of services/ADR processes provided, any pre-requisites for use of service like geographical location or membership, etc.
- Use of technology and the online environment for dispute resolution ODR providers should disclose the current availability of technology, like possibility of dealing with disputants' differences in language and culture, or incorporating audio and video streaming, or accessibility to persons with disabilities or with low levels of literacy, preservation of confidentiality and privacy of the parties, accessibility, back-up and arrangements for alternative emergency access. Further disclosures are required regarding training of the neutral parties in the system like the arbitrator, mediator, potential participants/parties, in the use of online systems.
- Costs and funding Disclosures as to the preliminary costs for the process and what portion of the cost each party will bear are necessary. Equally important is to disclose the source of funding in case one of the parties is not required to pay at all. This is important in Business to consumer transactions where generally the company funds its own in-house ODR system.
- Impartiality This is one of the important disclosures to be made by the ODR service provider to generate confidence in the user. ODR providers must disclose relationships with other organizations (like merchant associations), selection process of neutrals (eligibility and qualification of a neutral), ethical standards of neutrals (ethic rules, if any, by which neutrals are bound).
- Confidentiality, privacy and information security ODR institutions should give their Privacy Policies, confidentiality concerning information about participants provided to the ODR Provider and concerning specific proceedings.
- Qualifications and responsibilities of neutrals
goes for written submissions, if any, made by the parties online. Section 4 of the information technology act states that “Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is- (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference.”. Hence based on this provision it is clear that even if the arbitration and conciliation act doesn’t contain an explicit provision regarding admissibility and enforceability of an electronic form of presentation of data or a contract or some form of information, it is acceptable as an valid form.
- Award to be in 'writing' and 'signed' ; Section 31(1) of the Arbitration Act requires the arbitral award to be in writing and signed by the members of the arbitral tribunal. In such case, validity of an electronic award has to be decided ..As far as the condition that the award must be in 'writing' is concerned, that is answered by section 4 of the IT Act which has already been discussed above with regards to communication between the parties themselves or with the parties and the arbitrators. Here it relates to the admissibility of awards made by the arbitral tribunal in an electronic form by virtue of section 4 of the information technology act As regards the 'signature' requirement which is covered under the second part of section 31(1) section 5 of the IT Act provides that digital signature would have the same legal effect as a paper signature. Section 5 reads as follows. “ Legal recognition of [electronic signatures].—Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of [electronic signature] affixed in such manner as may be prescribed by the Central Government.’ Hence the ambiguity regarding the acceptance of electronic awards in the eyes of laws has been clarified after the enactment of it act
- Enforceability of the e-award : Another concern relating to the use of ODR is the enforceability of the online award rendered. Which court should a party approach to enforce the award? Will it be the court of the place where the arbitration agreement was signed? Or will it be the court of the place where the arbitrators were sitting? Or will it be the court of the place where the award was rendered? Or where the ODR institution is physically established? Or where the parties are established? The answer lies in the Arbitration Act itself. Section 36 states that the award will be enforced under the Code of Civil Procedure, 1908 as if it were a decree of the court. As per section 2(e) of the Act, 'Court' means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit. Therefore, the court in which the award will be enforced is dependent on the subject
matter of the arbitration and not on the place where the arbitrator sits or renders the award or where the parties are established.
- Section 19 of the Arbitration and Conciliation Act, 1996 which states that tribunal is not bound by provisions of CrPC and INDIAN EVIDENCE ACT and so may decide upon the procedure to be followed in conduct of such proceedings thereby making online or live conduct well within the legal domain and no one can challenge such proceeding merely on the ground of being an online resolution proceeding. MAJOR INITIATIVES TAKEN BY THE INDIAN GOVERNMENT FOR PROMOTING ODR
- In 2018, the Indian Parliament passed the ‘Pre-Institution Mediation and Settlement Rules’ in terms of Section 21A(2) of the Commercial Courts Act, which makes it mandatory for commercial disputes over INR 3,00,000 rupees to undergo mediation before filing proceedings in court.
- The Finance Ministry had introduced the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, in the budget for 2019-20 with the objective of settling pending disputes of Service Tax and Central Excise as. Over 133,661 taxpayers had submitted their application by 31st December 2019 whereby the applicable tax dues of Rs 69,550 crores were settled at Rs 30,627 crores.
- In May 2019, a high-level committee constituted by the Reserve Bank of India submitted a report on 'Deepening of Digital Payments' in India. The committee was of the view that payment systems should move towards using a machine driven, online dispute resolution (ODR) system to handle complaints expeditiously.
- The National Consumer Disputes Redressal Commission drafted the Consumer Protection (Mediation) Regulations, 2019 under the Consumer Protection Act 2019. These regulations set out the procedure for empanelment of mediators at District, State and National level consumer grievance forums, procedure of mediation proceedings, fees and costs.
- Recently President of India Shri Ram Nath Kovind and Chief Justice of India Shri S.A. Bobde stressed on the adoption of mediation as a tool for dispute resolution and integrating artificial intelligence in judicial processes.
- The Finance Ministry recently expressed the need for a new law to safeguard foreign investments by speeding up dispute resolution in the country. An unpublished draft of the Finance Ministry has proposed appointing an expert and setting up fast-track courts to settle disputes between investors and the government.
- The Finance Ministry recently unveiled the Amnesty Scheme ‘Vivad se Vishwas’ in the 2020 budget for Direct Taxpayers to settle appeals pending at various forums. Under this scheme, the
