ONLINE DISPUTE RESOLUTION: A DAWN TO CIVIL JUSTICE ADMINISTRATION

admin | February 27, 2017 | Procedural | No Comments

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This article was written by Saumya Upadhyay, a student of Bharatividyapeeth New Law College, Pune.

INTRODUCTION

Dispute in general terms is a kind of disagreement between parties which may be due to allegations, conflict or claim of rights etc. Disputes resolution can be in various modes where it can be an adjudicatory process with litigation involved or by means of an adjustment through Alternative Dispute Resolution methods like arbitration, mediation, negotiation etc. which we often broadly categorise into judicial method and extra-judicial mode of dispute resolution.

With the growth of civilization and globalization, e-commerce transactions, cross border transactions there are chances of disputes of diverse nature including social, commercial, intellectual property or a jurisdiction issue as to which law should the court rely to adjudicate upon an issue where in many instances two or more jurisdictions are parties.

The virtual world of Cyberspace has become our means of social interaction and a preferred mode of cross border business like e-retailing etc. When the society is moving at a faster IT based pace in cyberspace and civil justice system is creaking, a way out to solve e-disputes arising between parties in connection of their acts or omissions in the cyberspace can be resolved through online dispute resolution mechanisms.

ONLINE DISPUTE RESOLUTION

The origins of ODR can be traced back to 1996 when the Virtual Magistrate project was established to offer online arbitration system to resolve e defamation matters. The Online Ombudman’s office at University of Massachusetts resolved a dispute of a website owner with a local newspaper owner involving a copy right infringement issue which was settled through mediation.[1] Dispute resolution has always been a tricky yet vital affair for the legal fraternity. Online dispute resolution (ODR) is a process where e-disputes are resolved through an internet based mechanism automated by software or a neutral third party/panel offering a practicable solution. Here, e-disputes may include online hate speeches, posting of defamatory matter, posting of information that invades privacy of a person or disclosure of sensitive information online, apart from commercial disputes such as domain name disputes, breach of e-contract, criminal activities such as cyber frauds, corporate espionages, identity theft, or data thefts, intellectual property related disputes, cyber- terrorism, cyber-fascism, software related disputes etc.[2] institutions such as WIPO,SIAC and ICC have an established goodwill in resolving disputes through ADR and ODR. Other service providers in U.S.A. are www.mediate.com, www.novaforum.com, www.icourthouse.com, www.etribunal.com, cybersettle.com, disputemanager.com.

The ODR mechanism is such where dispute resolution is a facilitation resulting in actual; resolution of disputes. With a greater digital divide, ODR is a resort preferable for almost all kinds of settlement of civil disputes. It is generally done by a third party or a software , not necessarily a judge where e-filing of documents is done and it may be possible that the parties to dispute never converse together in any form during dispute resolution.

DEFINITION OF ONLINE DISPUTE RESOLUTION (ODR)

Farah defined ‘Online Dispute Resolution’ to mean utilizing information technology to carry out alternative dispute resolution.[3]

Schiavetta explained that the online dispute resolution comprises of a process to resolve dispute exclusively online and also other dispute resolution process that use internet.[4]

According to Katsh and Rifkin[5], the three important factors, namely convenience, trust and expertise forms the essence of ODR. In my view, particularly in the developing countries , there are many other factors which are equally essential to an ODR process, such as affordability, accessibility and infrastructure, flexibility, transparency amongst other factors.

ADVANTAGES OF ODR

E-filing replacing bulky paper work
Party oriented mechanism
Flexible, private and suitable
It overcomes language and geographical barriers
Reduces pressure on judicial system
Enforceable by agreement eg. Mediation, arbitral award
If non-binding yet may result in binding settlement
Impartial and efficient
Transparency
It would help to overcome problems with expensive and dilatory judicial system.
Can help to reduce disputes of a larger domain whether it is relating to contract disputes or any conflict between two or more parties.
Helpful in resolving financial disputes.
independent set of laws/rules of an ODR service provider may apply helping to curb jurisdiction disputes

CHALLENGES TO ODR

Legal challenges

Mutual consent to adopt such methods is a sine qua non for its being.
Scope of ODR revolves around ADR methods
Sensitive disputes relating to constitutional law, criminal law etc is out of its domain
Limited jurisdiction and varied laws of different lands

Technical challenges

Internet security
Technophobia among stakeholders
Impartiality and other privacy concerns
It lacks humane touch.

IT ACT, 2000 (2008) AND ODR

The Information Technology Act, 2000 grants legal recognition to use of electronic signatures and electronic records. The Preamble of the Information Technology Act, 2000(2008) expressly mentions:

“An Act to provide legal recognition for the transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “Electronic Commerce”, which involve the use of alternatives to paper based methods of communication and storage of information , to facilitate electronic filings of documents with the Government agencies and further to amend the Indian Penal Code, Indian Evidence Act, 1872,, The Bankers’ Books Evidence Act, 1891, and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”[6]

In State of Maharashtra vs Dr. Praful B. Desai[7] , the Supreme Court of India held that ‘Video Conferencing’ is an acceptable method of recording evidence for witness testimony.[8] Moereover, In Grid Corporation of Orissa Ltd. vs. AES Corporation, the Supreme Court held-

“when an effective consultation can be achieved by resort to electronic media and remote conferencing, it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties”.[9]

Thus we can say.,IT Act and judiciary support Online dispute resolution techniques.

ODR IN INDIA

In India ODR budded through (Alternative Dispute Resolution) ADR mechanism. ADR was introduced to India to solve some family disputes or some commercial disputes which eventually was helpful in rendering speedy justice as well as reducing the pendency in conventional courts. ADR has been a success in India and some of the organizations like helpful in promoting ADR and ODR services in India. Techno Legal Centre of Excellence for Online Dispute Resolution (ODR) in India (TLCEODRI) has been managing techno legal issues of ODR since 2012 in India.

RECOMMENDATION

Awareness about these dispute resolution mechanism to be increased
Establishment of Internet Based Courts
Stakeholders to realize the importance and inclusivism of such techniques to government and international disputes

CONCLUSION

ODR is the future of the civil justice administration system. It is a helpful tool in dispute resolution in the era of digital divide and virtual cyberspace transactions. E-readiness in Indian judicial administrative system is a pre-requisite for such dispute resolution mechanism. Our judiciary is constantly endeavouring to facilitate, promote and validate these methods. The National Policy and Action Plan for Implementation of information and communication technology (ICT) in the Indian Judiciary–2005 is a stern move towards it along with the amendments and provisions in information technology act,2000 (2008), it has a great untapped potential which is required to be utilized through a contributive and combined effort of government and private institutions. Law must be dynamic and when cyberspace is replacing real world activities, the dispute resolution mechanism should also evolve at par with technological requirements. Not only introduction of these cyberspace activities is required but also a proper implementation and mechanism in cyberspace is a prerequisite for striking a balance in this globalised world.

[1] Seth Karnika, Emerging Concept of Online Dispute Resolution Computers, Internet And New Technology Laws (LexisNexis, 2^nd edition, 2016) 583-603.

[2] Seth Karnika, Emerging Concept of Online Dispute Resolution Computers, Internet And New Technology Laws (LexisNexis, 2^nd edition, 2016) 583-603.

[3] Farah C, Critical analysis of online dispute resolution :optimist, realist and the bewildered, Computer Telecommunications Law Review, 11(4), 123-128. Zondag and Lodder defined online dispute resolution as using internet for alternative dispute resolution, constructing computer assisted dispute resolution system by developing generic language to analyse information exchange in conflict discourse, International Review of Law, Computer and Technology, 21(2), 191-205.

[4] Schiavetta S., Relationship between e ADR and Article 6 of European Convention of Human Rights pursuant to case law of European Court of Human Rights, Journal of Information Law and Technology, 2004 (1) JILT.

[5] Katsh E, Online Dispute Resolution : some implications have emergence of law in cyber space, Lex Electronica, vol.10n.3,hiver/winter2006, http://www.lex-electronica.org/articles/v10-3/katsh.htm

[6] Taxonic Instruments v. Commissioner Of Commercial Taxes

[7] Maharashtra v Dr. Praful B. Desai (2003) 4 S.C.C. 601..

[8] Seth Karnika, Emerging Concept of Online Dispute Resolution Computers, Internet And New Technology Laws (LexisNexis, 2^nd edition, 2016) 583-603.

[9] Grid Corporation of Orissa Ltd. vs. AES Corporation 2002 A.I.R. S.C. 3435.