This article is written by Kritika Garg from National Law University Odisha. This is an exhaustive article on the topic Online legal dispute resolution- apps and possibilities.
‘JUSTICE DELAYED IS JUSTICE DENIED’ is a well-known legal maxim which means that if justice is not delivered in time, then it is effectively equivalent to no remedy at all. The main idea behind the maxim is to ensure speedy trial so that justice can be done. However, the current scenario that lies in front of all of us is that of an overburdened judiciary with crores of cases pending in various courts of the country. Delay in the administration of justice along with other shortcomings of the Indian judiciary, such as high cost of litigation, led to the emergence of Alternative Dispute Resolution. Furthermore, the technological revolution paved the way to Online Dispute Resolution which is the online resolution of disputes using the mechanisms of Alternative Dispute Resolution with the help of technology.
Online Dispute resolution
Online dispute resolution (ODR) refers to the use of alternative dispute mechanisms, namely arbitration, mediation, negotiation, and conciliation, online for quick and easy redressal of disputes between the parties. In other words, the use of technology along with alternative dispute resolution mechanisms in order to resolve disputes is known as Online Dispute Resolution. It can take place either completely or partially on the internet and concerns disputes of both the types, the one that arises offline as well as the one that arises in cyberlaw. ODR is not only a cost-effective mechanism, it is time effective as well. Since the use of ODR does not require physical presence, it does away with the requirement of travelling to courts as is the case with other mechanisms such as litigation.
Origin of ODR
The usage of the internet across the world has increased tremendously. The Internet is now used for conducting trade and commerce as well. However, with the advent of e-commerce, there arose certain online disputes. The increasing number of online disputes placed the need for a sustained ODR system which prompted the National Center for Automated Information Research to conduct a conference on ODR in 1996. The conference resulted in the funding of three ODR projects:
Resolve disputes between Internet Service provider and customers
Resolve general Internet disputes
Check whether ODR could be used in family disputes with parents being located at a distance
Matters of e-defamation and website copyright infringement were resolved by the Virtual Magistrate and Online Ombudsman’s office. Post that, in order to evolve the concept of ODR, Hewlett Foundation availed grants to the University of Massachusetts to establish the Centre for Information Technology and Dispute Resolution (later the National Centre for Technology and Dispute Resolution). The Centre organised Cyber week, an all-online conference that enabled over four hundred people across the globe to engage in discussions about ODR.
Then, in 2002-2003, the first international ODR forum was conducted by the United Nations Economic Commission for Europe in Geneva. Since then the forum has been conducted in Melbourne (2004), Cairo (2006), Hong Kong (2007), Victoria, Canada (2008), Haifa, Israel (2009), Buenos Aires (2010), Chennai, India (2011), Prague (2012), Montreal (2013), Silicon Valley (2014), New York (2015), Hague, Beijing (2016) and Paris (2017), Auckland, New Zealand (2018) and Williamsburg, Virginia (2019).
Tata Sons v. The Advanced information technology Association
It is a landmark case in which WIPO, the Arbitration and Mediation Center was made to resolve the disputes pertaining to the domain name. Tata sons filed a complaint with WIPO against AITA for the illegal registration of the domain name <tata.org.>
The WIPO held that ‘Tata’ is a well-known family name linked to high-quality products. Further, the presence of AITA in the same city as Tata proves that AITA was aware of the reputation of Tata. Therefore, the WIPO panellists held that the domain name shall be transferred to the Tata sons as it has been wrongfully registered by AITA in bad faith.
State of Maharashtra v. Dr Praful B. Desai
In this case, the Supreme Court held that video conferencing can be considered as a valid source for taking evidence of witnesses provided that the recording satisfies the requirements of Section 273 of the Code of Criminal Procedure, 1973. Section 273 states the recording of evidence must take place in the presence of the accused in order to be admissible in the court of law. The court observed that video-conferencing is actual reality and not virtual reality as it allows one to see, hear and talk with someone far away with ease as if the person is present right there.
Trimex International FZE Ltd. v. Vedanta Aluminium Ltd.
This is a landmark judgement in which the Supreme Court held that the online arbitration agreement is the most important document of arbitration. Therefore, it is pertinent to define all particulars of the dispute resolution mechanism in the agreement also because the parties do not meet personally, rather they meet virtually. Further, the court held that meeting of minds is of utmost importance while entering into an agreement and the agreement requires to be in consonance with Section 7 of the Arbitration and Conciliation Act, 1996.
Shakti Bhog Food Ltd. v. Kola Shipping Ltd.
This is the case in which the court held that communication via telex or telegram or any other mode of communication is valid. Acceptance using letters or telegrams or any other mode of communication signifies an active assent by both the parties and demonstrates the meeting of minds regarding the arbitration agreement.
Advantages of ODR
Since the use of ODR does not require any travelling, it really cuts down the travelling cost which is a major expenditure in resolving disputes by litigation. Apart from that, ODR also reduces the high advocate’s fee that is being charged in litigation. Thus, ODR proves to be a much more cost-effective mechanism as compared to other mechanisms.
ODR happens to be a very convenient mechanism since it avails a variety of service providers irrespective of their geographical location. One can access any service provider from the comfort of their place without travelling.
Informality and Flexibility
ODR is a very informal and flexible tool of dispute resolution as compared to the court procedure because it not only obviates the need of the parties to be physically present at a place, but it also resolves the disputes in a very speedy and effective manner.
Since the entire proceedings take place online, one can have access to it anytime and from anywhere which makes ODR a lot easier and really accessible.
With the evolution of ODR, there have been certain platforms and apps that have come up to provide the service to make the process a lot easier and accessible. Some of them are:
- Conflict Resolution.com
- Dispute Manager
- The Internet Ombudsman
- Legal face-off
- Mediation Now
Online dispute resolution- boon or bane?
Overburdened judiciary and emerging online disputes gave way to ODR for flourishing. With speedy justice available in the comfort of the house, ODR has definitely come up as a boon to most of us. It’s availability at any place, and resolution of disputes at a speedy pace has helped people to get justice without any trouble. Further, it has become one of the most significant methods of resolving the Business to Business and Business to Customer disputes in the current era where e-commerce and trade have become the norm of the day. Additionally, during this time, when the world is going through such a tough time, fighting against a pandemic that has left all of us locked in our houses, people cannot access the courts to get justice. Therefore, ODR has a big role to play.
However, there are plenty of flaws available in ODR as well. Most of the people do not have access to technology, computer and internet which makes it impossible for them to use ODR. Further, the lack of security is one of the major factors which prevent people from relying upon ODR. The entire procedure takes place online which means all the records are maintained online. Lack of security can lead to leakage of sensitive information. Therefore, there are certain factors which point to the fact that ODR can be a bane as well, if not implemented properly. Therefore, it is essential to work on the ODR so that the flaws can be worked upon and it can be implemented more effectively and efficiently.
One of the major issues with ODR is inaccessibility to technology, computers, and the internet. Some individuals might not have access to computers or the internet. And even if they have access to a computer, then some might not be acquainted with the knowledge of using the computer. So this becomes a major issue in solving disputes online.
It is easy to determine the jurisdiction of a court when the cases are solved offline. However, such is not the case in an online settlement. Since, the dispute is solved online, with parties being at distinct places, it becomes really difficult to determine which court will have jurisdiction over the dispute, and thus, the question of applicability of substantive law arises.
Lack of Confidentiality
Another major issue that creates an obstacle in the way of ODR is the lack of confidentiality. Since the entire procedure of dispute settlement takes place online, it creates an electronic record, and in case if there is no proper security, the chances of sensitive information getting leaked are high. So this creates a sense of fear and credibility issue in the parties as lack of confidentiality can have disastrous effects on them.
Since the use of ODR does not require physical interaction between the parties and the arbitrator or mediator, it becomes difficult for the arbitrator to resolve the disputes as the state of mind of the parties, their tone, volume, body language are not transparent to him/her. This makes the whole process less effective.
Another major loophole in ODR is its limited scope. The scope of ODR is limited to handling disputes which have the issue of undetermined settlement money.
Reforms and suggestions
While ODR has multiple advantages, it has certain loopholes as well. With the technological advancement at its peak, ODR is definitely the need of an hour. So it becomes really essential to overcome the obstacles that are there in the way of ODR so that the overburdened judiciary could be relieved and justice could be served at the earliest. Certain reforms that could help in overcoming the issues are:
- A lot of people are not aware of the technology and the mechanisms that are available for their help. They are still dependent completely on the courts which are overburdened making them inefficient. So, spreading awareness among the general public about the technology, and the dispute resolution mechanisms are important and should be done in the first place.
- The ODR process must be simplified as much as possible. The parties should be able to settle their dispute online.
- The government can play an important role in establishing a strong infrastructure for ODR by granting financial aid and assisting technological support to construct a strong ODR system.
- Proper security systems should be developed so that people can actually trust ODR. Security, privacy, confidentiality should be given more preference.
- Uniform law should be codified which should be capable of answering the questions pertaining to the admissibility issue, jurisdictional issue, and other issues.
Online Dispute Resolution has its own merits and demerits. In this hour of necessity, where it is essential to make justice available to the general public at an affordable price, ODR can prove to be fruitful for our society, provided its flaws are being worked upon properly. Only after the resolution of these flaws, can ODR be implemented successfully as well as effectively. Providing advanced informational technology, user-friendly internet modules, sense of security along with a strong, flexible and affordable infrastructure can help in better implementation of ODR. Once ODR is implemented effectively, it will not only ease out the burden that lies on the Indian judiciary with its speedy process, but it will also bring transparency in e-commerce and trade because, then, there will be a strong, effective tool to deal with the disputes that arise out of e-commerce. Therefore, to conclude, ODR is a powerful tool that can come out as an effective and inexpensive settlement mechanism, if proper steps are taken for its implementation.
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