Online dispute resolution in India
Essay by Chitranjali Negi
*This essay is published by Chitranjali Negi, Indian lawyer at the Supreme Court of New Delhi.*
Online dispute resolution 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. ODR is concerned with the civilized (i.e. 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 courts which exercise mandatory jurisdiction over defendants, and the latter by making the litigation process public, thus allowing for the proliferation of precedent, as well as by the enactment of codifications of rules of law.
Regarding the dispute resolution function of private law, there are a variety of functional equivalents to litigation available, which are collectively referred to as alternative dispute resolution (ADR). On the one hand ODR relates to the resolution of disputes that result from online conduct, i.e. from communications and transactions which come about through the use of the Internet Domain name disputes are a prominent example as are disputes related to e-commerce. On the other hand, ODR relates to the use of online communication technology in the resolution process, even if the dispute itself has an offline origin. The provision of alternative dispute resolution (ADR) services on the Internet has become quite popular. Online dispute resolution (ODR) in India is in its infancy stage and it is gaining prominence day by day. With the enactment of Information Technology Act, 2000, e-commerce and e-governance have been given a formal and legal recognition.
Dispute resolution techniques range from methods where parties have full control of the procedure, to methods where a third party is in control of both the process and the outcome. These primary methods of resolving disputes may be complemented with Information and Communication Technology (ICT). When the process is conducted mainly online it is referred to as ODR, i.e. to carry out most of the dispute resolution procedure online, including the initial filing, the neutral appointment, evidentiary processes, oral hearings if needed, online discussions, and even the rendering of binding settlements. Thus, ODR is a different medium to resolve disputes, from beginning to end, respecting due process principles. ODR was born from the synergy between ADR and ICT, as a method for resolving disputes that were arising online, and for which traditional means of dispute resolution were inefficient or unavailable.
The Internet began in 1969 as experimental network called ARPANET and funded by the US Department of Defence to insure that its computer system would remain functional in the event of an enemy attack The widespread use of Internet technology in the late 1990s in the United States and to some extent in Europe has heightened interest in ADR. In the 1980s, the National Science Foundation (NSF), the scientific and technical agency of the United States Federal government expanded ARPANET. In 1989, the name “World Wide Web” was invented by the European Center of nuclear research in Geneva. Then, the rise of popularity of the Internet in the United States coincided with the outsourcing in 1995 of the internet management from NSF to the private sector. Online dispute resolution was heralded as a way to circumvent clogged and slowing moving American federal and state courts. From 1995 to 1998, informal online dispute resolution mechanisms were recognized as distinct from ADR and since 1998 they have become an industry in the United States.
The first online experiments in Northern America were the Virtual Magistrate (1995) was launched by cyber-law academics belonging to by the National Center for Automated Information Research (NCAIR) and Cyberspace Law Institute as well as the American Arbitration Association. The University Of Massachusetts Online Ombudsman Office (OOO) was created in 1996 by the Center for Information Technology and Dispute Resolution of the University of Massachusetts and also funded also by NCAIR. The OOO is primarily interested in mediating disputes arising out online activities. Each user provides the OOO information about his or her dispute. If both parties are cooperating, the ombudsperson can start the mediation. and the Cyber Tribunal was initiated in 1998 by the University of Montreal which used both mediation and arbitration. The experiment ended in December 1999 and the project has evolved into a commercial venture called e-Resolution.
FORMS OF ALTERNATIVE DISPUTE RESOLUTION (ADR):
In the new economy, where more and more transactions are completed in cyberspace, ADR seems natural. The rapidity with which transactions are performed (one of the many advantages of electronic commerce) also requires that disputes should be resolved with the same speed..
Negotiation: In its simplest form, negotiation involves an exchange of views and proposals when a dispute opposes parties who wish to settle out of court. Unlike mediation or arbitration, negotiation does not involve the intervention of a third party. Finding a mutually acceptable solution to the dispute lies entirely in the hands of the parties.
Mediation: Mediation can be defined as a process by which two people agree to submit their dispute to a neutral third party, the mediator, who uses various methods and techniques to try to guide the parties toward an out-of-court settlement. Managing the mediation process can also be collegial, in other words, performed by a number of individuals.
Arbitration: Arbitration is a voluntary process in which disputing parties engage the services of one or more neutral third parties. This dispute resolution process is most closely analogous to litigation because it is adjudicatory; the arbitrator renders a final decision much the same way a judge enters a final judgment in a litigated case. As in the case of mediation, arbitration is sometimes very advantageous for parties that are in conflict but nonetheless wish to pursue their contractual relationship and maintain the confidentiality of the proceedings
PENDENCY IN INDIAN COURTS:
Indian Courts are packed with cases pending from different Sectors, be it Civil cases or Criminal cases or newly evolved Cyber cases. Though to expedite the pending cases the Government is taking up reform measures, but with the growing variety of the cases arising every day, the number of pending cases still seems to be not coming down.
RELEVANCE OF ADR/ ODR IN INDIA: While studying the state of advancement of ADR or ODR, we have to stop and ponder on how relevant these kind of dispute resolutions mechanisms are to the Indian context. Considering the current state of the justice system in India, it can be concluded that alternatives to traditional litigation is very urgent. At present, nearly 19,000 judges, including 18,000 in trial courts, are dealing with a pendency of 3 crore cases, resulting in a civil case lasting for nearly 15 years and giving credence to the adage "justice delayed is justice denied".
CONCLUSION: The need of ODR is going to be felt very soon and we must prepare for it. A sound technology legal base must be established in advance. It is also mandate of article 21 of the constitution of India. The fact that we have woken up in 1999 and have started to enforce sec. 89 of the Code of Civil Procedure only from 1st July 2002, should not matter. Better late than never. Every Bar council, every Bar Association and every lawyer to give conciliation/mediation higher priority than adjudication and give the litigant a reasonably good chance of settling the disputes so as to save time, money-leaving more complicated and tougher cases and the criminal cases to pass through the adjudicatory process. It can’t be doubted that if the state is encouraging ODR it is thereby assisting in the attainment of a speedier economical and convenient justice system. Thus the sooner ODR is the better it will be for the nation in general and the justice seeker in particular.
REFERENCES / BIBLIOGRAPHY:
German Law Journal
E. Katsh, and J. Rifkin, J. Online Dispute Resolution: Resolving Conflicts in Cyberspace (San Francisco, Jossey-Bass, 2001) p. 9
J. Hörnle, "Online Dispute Resolution: the Emperor's New Clothes" (2003) 17(1) International Review of Law, Computers & Technology 27. See Cf. J. Hörnle, Cross-Border Internet Dispute Resolution (Cambridge, Cambridge University Press, 2009).
A. Lodder, "The Third Party and Beyond. An Analysis of the Different Parties, in Particular The Fifth, Involved in Online Dispute Resolution" (2006) 15 (2) Information and Communications Technology Law p. 144. G. Kaufmann-Kohler and T. Schultz, Online Dispute Resolution: Challenges for Contemporary Justice (2004) p. 5.
P. Cortes, Online Dispute Resolution for Consumers in the European Union (Routledge, 2010)
Number of Cases pending in Indian courts http://corporatecases.blogspot.in/2012/05/number-of-cases-pending-in-indian-courts.html
Reference: Supreme Court quarterly newsletter Oct-Dec 11
Published on 03 December 2014
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