It's not that we use technology, we live technology. Godre Reggio
In 1999, when the platform e-bay sought assistance of University of Massachusetts Amherst Centre for Information Technology and Dispute Resolution in its pilot project to meditate disputes between buyers and sellers online, no one could have predicted that it will become a landmark for the contemporary history of law to witness. The project went on to handle two hundred disputes in just a span of two weeks, which till date is the largest number of disputes ever handled online.
The potential of Online Dispute Resolution was on the verge of being recognised in global arena pushing the traditional notions of resolving disputes in only court rooms when the novel coronavirus hit the entire world. The advent of the pandemic has not just disrupted the day-to-day lives but has pushed the judicial system to embrace technology more than ever. The circumstances, however, have turned more in favour of making Online Dispute Resolution a go-to mechanism to resolve disputes since the lockdown has made a considerable increase in the backlog of cases in courts.
In the light of the above, Niti Ayog under the chairmanship of Justice (Retd.) A.K. Sikri released its report titled 'Designing the Future of Dispute Resolution - The ODR Policy Plan for India' on 28.11.2021. The report has made an attempt to develop an action plan to cater dispute resolution process in India online by adapting dispute avoidance, dispute containment, and dispute resolution.
ONLINE DISPUTE RESOLUTION (ODR)
ODR is the process of resolution of disputes, particularly small- and medium-value cases, using digital technology and techniques of ADR, such as arbitration, conciliation, and mediation1. The United Nations Commission on International Trade Law (UNCITRAL) Technical Notes on Online Dispute Resolution 2016 define ODR at paragraph 24 as2:
'A mechanism for resolving disputes through the use of electronic communications and other information and communication technology [ICT]. The process may be implemented differently by different administrators of the process and may evolve over time'.
In India, there have been various instances where the courts have indicated towards pro-ODR approach. It becomes pertinent to analyse how prepared the country is to adapt this change in the system.
CURRENT FRAMEWORK IN INDIA
Owing to the changing circumstances, any debut institution in the societal framework demands a governance framework for regulation purposes. The report of the high level committee on Deeping of Digital Payments was the first formal step for the development of ODR in India. There are a range of contributing legislations that deal with the ADR and technology angle of ODR. The Arbitration and Conciliation Act, 1996, governs the domains of ADR. However, the parent legislation is the Code of Civil Procedure, 1908. Section 89 of the Code provides for the power of the court to expose the parties to all forms of ADR and not just within the limits of arbitration, i.e., the conciliation and judicial settlement, including the settlement through mediation or Lok Adalat. These Lok Adalats are governed by the Legal Services Authorities Act, 1987.
Further, Section 12A of the Commercial Courts Act, 2015, introduced pre litigation mediation in India. The parties should consider the option of initiating mediation before directly filing a suit unless the case requires urgent interim relief. Section 442 of the Companies Act, 2013, states that a panel of experts called the 'Mediation and Conciliation Panel' must be maintained by the Central Government. The enactment allows parties to proceedings before the National Company Law Tribunal (NCLT) or National Company Law Appellate Tribunal (NCLAT), sometimes even the central government, to request for the dispute to be referred to mediation. In section 74 of the Consumer Protection Act, 2019, consumers are facilitated with broad base mediation through establishment of 'Consumer Mediation Cells' in every district. Further, the Consumer Protection Act (E-Commerce) Rules, 2020, has set the foundation of ODR by mandating e-commerce entities to develop internal grievance redressal mechanisms.
Further, the Information and Technology Act, 2000, comes into play for the technical aspect of ODR. Electronic records and signatures are recognized by section 4 and 5 of the enactment. The digitisation of justice delivery system is in crucial need of legal recognition, for which this Act can be used as a support system. The Supreme Court in the case of Shakti Bhog Foods Ltd v. Kola Shipping Ltd.3, held that:
"Online arbitration agreements are lawful as fulfilling the essentials of a complaint under sections 4 and 5 of the Information Technology Act."
Another notable legal framework is the Indian Evidence Act, 1872, where section 65-A and 65-B of the Act recognises electronic evidence, sharing of virtual documents and conducting virtual hearings can be regulated through such provisions.
For the purpose of appointing an arbitrator, the Supreme Court, in the case Grid Corporation of Orissa Ltd. v. AES Corporation4 allowed remote conferencing for the purpose of appointing an arbitrator. Similarly, in the case of State of Maharashtra v. Praful Desai5, the Supreme Court upheld video conferencing as a valid mode for recording evidence and testimony of witnesses.
The apex court in the Meters and Instruments Private Limited &Anr. v. Kanchan Mehta6 observed that:
"Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be a need to consider categories of cases which can be partly or entirely concluded "online" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated."
The adoption of ODR comes with its own set of challenges. Keeping in mind a vast population, there is a gap in the digital literacy in the country. In order to achieve the full implementation of ODR, the gap needs to be reduced. Similarly, there are concerns regarding the lack of digital infrastructure, which includes access to computers, smart phones and medium to high bandwidth internet connection for at least the length of time it takes to conduct hearings. Moreover, there is a lack of awareness regarding the ODR.
The Committee, hence, has provided recommendations in order to curb down the challenges which pose a threat in implementation of ODR. It has become necessary that the regulatory model adopted by India protect the rights of the end users while ensuring that such regulation does not curtail innovation. The report suggests adoption of light touch regulatory model that uses both, legislative and non-legislative tools. The existing legislation is required to be amended to encompass the needs of ODR.
The recent times have seen the rise in the trend of the pre-litigation mediation. One of the keys to implement pre-litigation mediation can be adoption of opt-out model of compulsory or mandatory pre-litigation mediation, as followed in Italy7 and other jurisdictions. What needs to be taken care of is that adoption of such models has also resulted in barrier in access to courts as happened in Romania. Hence, a carefully woven model needs to be adopted to cater to the needs of India's judicial system.
Additionally, an ideal set of standards can be introduced that can be adopted by the stakeholders as voluntary principles. These principles can govern the technology as well as the design of ODR platforms and ethical obligations for ODR Centres and Neutrals.
ODR has been catalyst in improving the ease of doing businesses in other countries. For example, in European Union, the merchants are mandated to inform the customers regarding the availability of ODR. This helps in more stringent enforcement of contracts thereby improving the ease of doing business in the country as it brings in more investment in the country.8
India has a lot more to improve in the field of ODR, despite the range of legislations in support of ADR and technology jointly and separately. Although the recent efforts made by the government indicate a positive response to prior lack of infrastructure and technology. The government should be welcoming to a forward looking approach to the technologies to enhance the benefit while at the same time adopt a cautious approach to minimise the risk associated with integration of technology in dispute resolution. ODR has not yet reached the epitome of success but is definitely on the right path to clear obstacles like cybersecurity and technical awareness throughout the country.
1. NITI Ayog, NITI Aayog Pushes for Online Dispute Resolution for Speedy Access to Justice, available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1776202
2. Technical Notes on Online Dispute Resolution 2016, (UNCITRAL), available at https://uncitral.un.org/en/texts/onlinedispute/explanatorytexts/technical_notes
3. 08 Civ. 8817 (GEL) (S.D.N.Y. Feb. 24, 2009).
4. (2002) 7 SCC 736.
5. (2003) 4 SCC 601.
6. 2017 TaxPub (CL) 0840 (SC).
7. Leonardo d'Urso, 'Italy's 'Required Initial Mediation Session': Bridging The Gap between Mandatory and Voluntary Mediation', available at https://www.adrcenterfordevelopment.com/wp-content/uploads/2020/04/Italys-Required-Initial-Mediation-Session-by-Leonardo-DUrso-5.pdf
8. NITI Aayog, 'Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business', available at https://pib.gov.in/Press-ReleaseIframePage.aspx?PRID=1644465
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