Abstract
India’s court system is frequently criticized for apparent prejudice against the wealthy and powerful, ineffectiveness, and the lengthy delay in proceedings. In India’s court system, in particular, there is a great deal of delay. This is a result of the enormous number of cases that are filed nationwide and the ensuing systemic backlog.
There are several uses for internet and web-based technology. Internet-based communication tools, like email and online chat, can be used by the parties involved in a dispute to interact with one another. It may be possible to enhance dispute resolution in India by using the internet and web-based technology. Online dispute resolution is more expedient and less expensive than conventional dispute settlement procedures. Through online email, chat, video conferencing, and social media, internet-based dispute resolution can be conducted in an entity.
ODR has been a part of the legal system since the 1990s, but with the pandemic, it has gained a more interactive virtual presence. The Consumer Protection Act of 2019, the Companies Act of 2013, the Family Courts Act of 1984, and the Arbitration and Conciliation Act of 1996 are those that run concurrently with the Dispute Resolution procedures and the UN Conference on Global Settlement Agreements control the mediation process.
Introduction
A 21st-century medium that has revolutionised many facets of life is the Internet. It serves a variety of purposes and, as a universal source of information, a tool for communication, and a worldwide trade platform, it has evolved into the force behind the introduction of cutting-edge technical advancements into already-established fields of endeavour. The law is only one of the many facets of public life that the Internet has impacted. Its rapid growth has brought about a number of beneficial occurrences, such as the computerization of some legal processes such as its administration.
Recently, NITI AYOG launched a project aimed towards ODR on June 6, 2020, in which it collaborated with many associations and members of the general public to produce a virtual interview with the theme “Catalysing On the Web Debate Goal in India.” The goal was to get together with important partners to talk about how ODR may be implemented in India. The Supreme Court ruled in State of Maharashtra v. Dr. Praful B. Desai that all witness testimony must be obtained via video conference in order to achieve the goals of the Code of Criminal Procedure. This indicates that even the Supreme Court of India supports the application of Internet technology to the practice of law.
The introduction of online dispute resolution (ODR) has completely changed how we settle conflicts of all kinds. ODR enables users to submit cases online and allows an automated method to settle disagreements. While online dispute resolution can be traced back to the past, most online fashion sites used to resolve their disputes via online dispute settlement system, which gave an expansion to this entire system. Various websites were responsible for the smooth operation of the legal system during the pandemic.
The advantage of using an ODR platform is that customers avoid having to pay for legal representation or go through the lengthy procedure of filing a case in court. Users save time and money by using ODR, which employs an automated procedure to settle disputes. However, there are several issues that require additional analysis and difficulties to be solved.
What Is Online Dispute Resolution?
Online dispute resolution (ODR) is a type of online settlement that makes use of alternative dispute resolution procedures. Internet-based ADR is made possible by the use of existing ADR models known as online dispute resolution. The presence of a third party during the process of coming to an agreement, which is the fundamental premise of alternative dispute resolution techniques, is still applicable.
However, the employment of contemporary communication methods has given this a new dimension. As a result, there are non-direct methods for submitting requests or evidence as well as for conducting a full online procedure and providing a decision at the conclusion of the proceedings.
ODR may be defined as the process of using technology to resolve conflicts in its most basic form. Technology must be actively used to assist in the resolution of the conflict, such as through video conferencing for hearings or electronic document sharing for filing, rather than just being integrated (as when a meeting is scheduled electronically). The advantages of ODR go beyond e-ADR or ADR that is technology-enabled, despite the fact that they are developed from ADR. ODR can make use of AI/ML-powered technological tools in the form of script-based solutions, automated dispute resolution, and platforms that are specifically designed to handle particular types of conflicts.
Online Dispute Resolution Process
The Online Court is intended to function in three stages:
To promote swift conflict settlement, Stage 1 is meant to function as a “triage” mechanism. The Online Court system will provide first advice on the necessity of litigation as a last option and will connect potential litigants to accessible or free legal counsel. Additionally, it will allow the parties to speak with one another in order to determine whether a disagreement that has to be settled actually exists between the parties. In the event that the disagreement does not resolve at this point, the program will lead the litigant through a series of inquiries intended to pinpoint the pertinent facts and supporting documentation. The information will then be entered into a claim form that may be filled out online and confirmed as true by the claimant once it has been revised.
Conciliation is something that Stage 2 wants to incorporate into the online process, although participation will not be required. Case officers will be responsible for deciding which kind of dispute resolution is most suitable for the case, such as negotiation, mediation, or an early neutral assessment. Stage 3 will be reached if the conflict does not resolve at stage 2.
A district judge would decide the case definitively at stage three. If video and telephone conferencing tools are required, the default position would be a dispute resolution based only on the papers. The last recourse would be a typical trial conducted face-to-face. Additionally, the procedure would be more investigative, moving away from the conventional adversarial method. The judge will represent the parties in court, which is meant to make the procedure more acceptable for in-person litigants.
Legality Of Online Dispute Resolution In India
In India, online dispute resolution (ODR) is permitted. ODR may only be used with both parties’ permission. Except in situations when physical appearance is expressly required by law, it is possible in all circumstances. Rules for physical ADR are in effect.
ADR between parties is encouraged by the Indian legal system by Section 89 of the Code of Civil Procedure, 1908. Similar to this, Order X Rule 1A gives the court the authority to instruct the parties to an action to use any Alternative Dispute Resolution (ADR) approach to resolve their differences. Moreover, ODR may be a part of this.
ODR adheres to both the Arbitration and Conciliation Act of 1996 and the Information Technology Act of 2000. The parties must firmly determine that they will use online dispute resolution (ODR) as their primary method of conflict resolution. The Arbitration Act states that the parties are allowed to determine the location of the hearing, which might be conducted online as well.
In cases like Shakti Bhog Foods Ltd. v. Kola Shipping Ltd., and Trimex International FZE Ltd. v. Vedanta Aluminium Ltd. the parties reached an arbitration agreement by email. The Supreme Court expressly notes the following in Grid Corporation of Orissa Ltd. vs. AES Corporation:
“when an effective consultation can be achieved by resorting 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”.
According to Sections 4, 5, and 65-B of the Information Technology Act, electronic documents and signatures are admissible as evidence and are legally recognized in India. In the case State of Maharashtra vs. Dr. Praful B. Desai, the Supreme Court recognized the use of video conferencing to record witness testimonies. So, both the submissions and the procedures may be done online. In order to maintain uniformity, the International Chamber of Commerce has established several rules. The time zone, document type, and other details may all be agreed upon.
Last but not least, the award can be sent by email as scanned copies once it has been announced in accordance with S.31 of the Arbitration Act. With this, the process is complete, and the only remaining step is to enforce the award, for which a court can easily issue a decree. Even the National Internet Exchange of India (NIXI) presently uses it to settle domain name disputes. The sole distinction from conventional arbitration is that this one takes place online. The legislation that governs traditional arbitration must thus also govern ODR. ODR is also allowed in India, just like ADR is.
Benefits Of Online Dispute Resolution
- Increased access to justice and more swift, low-cost, and simple dispute resolution are the key benefits that the public is expected to get. The general consensus is that the existing civil litigation system does not provide access to justice for small to medium value claims for a variety of reasons. First off, legal representation is excessively expensive and frequently more expensive than the anticipated recovery, barring Legal Aid or a CFA. In addition, most laypeople find it impossible to understand the civil litigation system since the Civil Procedure Rules are extremely complex and the substantive law is becoming more and more complicated. The procedures are also written in legalese jargon. As a result, the majority of the people will have easier access to justice thanks to a low-cost online court with clear and simple regulations that reduce the need for expert legal assistance.
- By addressing important issues including lack of accessibility to actual courts or ADR facilities, the expense of dispute resolution, and hurdles resulting from disability, ODR can dramatically enhance access to a range of dispute resolution methods. Online negotiation and mediation are two examples of ODR technologies that make the dispute resolution process less combative and difficult for the parties because they are predicated on reaching an agreement together. The dispute resolution procedure may seem more approachable if it can be completed in the convenience of the user’s own home. This enhancement in the overall experience may persuade more parties to choose such formal forms of dispute resolution versus not pursuing their rights at all.
- By educating individuals about the law, their rights and obligations, and the remedies at their disposal, ODR may play a significant role in promoting legal health. For instance, in the European Union, it is required that retailers let customers know they have the choice to use ODR. Similar systems might be created, allowing parties to submit inquiries and receive responses on their rights and safeguards. Overall, ODR can aid in the transition to a society that is based more on the “rule of law.”
- limits the inherent bias that arises from human judgement Concerns about the influence of biases, prejudice, and stereotypes on decision-making processes and results have arisen as a result of growing awareness of issues relating to race, caste, and gender justice. According to studies, unconscious bias and apprehension about speaking with people from other cultures might affect how well a mediation goes. ODR procedures can minimise the Neutral’s implicit bias while resolving conflicts. ODR platforms, particularly those based on texts and emails, remove audio-visual cues related to gender, socioeconomic position, ethnicity, race, and other factors and assist in resolving disputes based on the claims and facts given by the disputing parties, rather than on who these people are.
- By digitizing the courts, it is envisaged that there would be less dependence on actual structures. The court estate may be diminished in this manner. Additionally, since the information would be maintained online, less back office space will be required, allowing courts in one town to be combined to establish multi-court centres. Lowering the fixed expenditures related to structures and generating income from the sale of land, all of this is meant to save money.
- ODR can assist in resolving disputes in a manner that is significantly more profitable than traditional methods; this is evident in situations involving global commercial issues. The conflicts are settled in a neutral venue, which prevents further board and lodging costs from being paid. This is true even in cases when the parties are based in the same city as the court. Other advantages of using ODR include the reduction in the number of conflicts that emerge between the parties, the time and money saved in the process of resolving disputes, and the speed at which disagreements are handled.
- In contrast to the traditional legal system, when cases are heard in open court, the issues being debated and resolved remain private. The use of technology in ODR lowers the cost of resolving a dispute as well as the amount of time it takes. ODR has been successful in resolving the problems of all parties, including consumers. An administrator for conflict settlement, who is separate from the disputing parties, oversees the procedure. The issue is resolved in favour of the side who is preponderant on the facts and the law by the ODR administrator, who counteracts the inherent biases of the court system. The procedure is quick, cheap, and efficient.
- ODR is unquestionably far more beneficial than the traditional litigation or alternative dispute resolution (ADR). For those who now approach various query target frameworks, it would be a really enticing factor. The cost of answering questions will be significantly reduced by using ODR. Additionally, it will receive a huge number of disputes, ensuring its profitability. For the elite segment of the general population, ODR accommodations are an additional bonus. However, if ODR succeeds spectacularly in resolving commercial disputes in India, a comparable system would be available to the general public as well. Additionally improving access to justice will benefit all consumers.
- Dispute prevention, containment, and settlement can all be aided by ODR. With more people using it, the legal climate of the society will be better, contracts will be more strictly enforced, and India’s ranking for ease of doing business will rise. ODR and Digital Courts (technology used in the public court system) have advantages that, when combined, have the potential to change the legal system’s whole framework.
- ODR enables parties to meaningfully engage in the procedure and to have a role in how disagreements are addressed. In turn, this promotes more confidence and dependability in the dispute resolution ecosystem by empowering parties and increasing their propensity to take part in current procedures. Parties have complete control over every aspect of the ODR process. ODR enables parties to participate in the management process, ensuring that their requirements are met and that their opinions are heard. They can use it to dispute choices that are not in their best interests or fail to take their circumstances into consideration.
- ODR also gives parties a chance to network with knowledgeable individuals who they may consult about their cases, no matter the result. This fosters confidence among the parties and improves their comprehension of their rights and obligations. The Neutral’s tendency toward ignorance, which can be a source of poor behaviour, can be lessened through ODR cycles. The gender bias of the Neutral is lessened by ODR platforms, especially those that take into account text and email, which cut out general media suggestions from interacting with the parties’ orientation. Additionally, ODR may be utilised to provide the party more autonomy and improve Neutral representation.
Challenges With The Concept Of Online Dispute Resolution
- India has a large number of languages and dialects, and residents in various regions of the nation speak various tongues and dialects. The result is a fragmented internet market in India. As a result, unlike metropolitan regions, individuals in rural areas employ a variety of languages and dialects to access the internet. In this way, it becomes difficult for some people to access the internet and understand the technical aspects of the ODR system.
- Both alternative dispute resolution (ADR) and online dispute resolution (ODR) are not appropriate for every issue. Legal proceedings are necessary for complex, intricate inquiries. The legal system is ill-equipped to handle such conflicts since the internet is a big and confusing area. Complex legal concerns cannot be handled by ODR because it is an online platform. Due to its independence, India’s Supreme Court and High Courts are to be admired greatly. concerns of a criminal character, such as murder, rape, and dowry deaths, as well as marital concerns, such as disagreements over property and upkeep, and situations involving the rights of the populace against the state, are some of the models that the ODR framework cannot choose. The Indian courts have historically acted as the final arbiter on these subjects and have never recognized the alternative dispute resolution system’s judgments.
- Across gender, region, class, and age, there is a difference in India’s access to technology. Women only make about 1/3 of Indian internet users, according to the Internet India Report 2019. India’s rural areas, where only 28% of internet users are women, provide an even worse situation. In rural India, just 27% of people have access to the internet, compared to 51% of people in urban India, due to the unequal distribution of technological access. Additionally, just 15% of internet users in India are older than 40. Such disparities in internet connectivity might lead to unequal access to ODR services, escalating the already existing disparities in access to justice through traditional courts. To actually be able to bring the advantages of ODR to all residents, it is crucial that concerted efforts are undertaken to bridge this gap.
- For its impartiality, independence, and integrity, the Supreme Court and High Courts have won several awards. The faith that people have in the judiciary contributes significantly to their respect. The degree of people’s confidence and trust in ODR organisations is not fully appreciated. The general public’s limited familiarity with online dispute resolution is mostly to blame for this.
The supreme court in Meters & Instrument Pvt Ltd & Anr. v. Kanchan Mehta observed that:
“The system of justice in India is largely paper-based. Most of the judgments and orders are passed in writing and stored in files. The system also requires a large number of staff to operate. As the population grows and the per capita income increases, the overcrowding of courts becomes a serious problem. The internet, particularly the internet in India, has seen numerous disputes over the years. The internet, however, is not limited to commerce. It has also been used for other activities, including social media and e-commerce. The internet has also witnessed numerous disputes, in some cases, of a criminal nature, where online justice cannot be provided to the victim as a thorough Investigation has to be conducted.”
Support Through Judicial Precedents
The Supreme Court was crucial in laying the groundwork for the introduction of ODR in this nation. India is clearly preparing for a logical shift towards ODR as seen by the concurrent efforts to incorporate technology into dispute resolution and dependence on ADR processes.
- In the State of Maharashtra v. Praful Desai, It affirmed the viability of videoconferencing as a method of gathering evidence and witness testimony and said that “virtual reality is the actual reality.”
- Additionally, the court acknowledged the legitimacy of online arbitration in the cases Shakti Bhog v. Kola Shipping and Trimex International v. Vedanta Aluminium Ltd. In each of these cases, the court determined that an online arbitration agreement is legal so long as it complies with Sections 4 and 5 of the Information Technology Act (“IT Act”), 2008, read with Section 65B of the Indian Evidence Act, 1872, and the requirements of the Arbitration and Conciliation Act, 1996.
- In A. Ayyasamy v. A. Paramasivam, the Supreme Court concluded that a dispute is not ineligible for arbitration simply because it contains a fraud charge. This pro-arbitration stance was strengthened by the most recent decision in Vidya Drolia v. Durga Trading Corporation, which determined that issues involving landlord-tenancy agreements may also be settled by arbitration if they were not covered by specific rent control laws. By setting forth a four-part test to evaluate arbitrability through such a precedent, the Supreme Court has helped India’s arbitration and ODR ecosystem by establishing a solid foundation for both of these processes.
Conclusion
The legal adage “Justice delayed is justice denied” essentially means that if justice is administered over a longer period of time, it is equivalent to justice being completely disregarded. Significant costs of entanglements result from the delay in the court system. People lose trust in and acceptance of the Indian judicial system’s ability to administer justice as a result. As a result, ODR methods of resolving disputes are efficient and unquestionably more effective in answering queries than the usual rigid methods.
The current state of India’s dispute resolution system includes a number of persistent issues, such as access and efficiency issues. It takes a lot of time and money to resolve disputes in India because of the large backlog and delay in decision-making in the traditional courts and tribunals. Consequently, conducting business in India is more difficult. Even though India recently improved in the World Bank’s ease of doing business ranking, the country is still unable to offer the best commercial and entrepreneurial environments due to the ineffective dispute resolution system.
ODR may provide customized dispute resolution options for organizations through simply accessible and user-centric processes, enabling business owners to effectively enforce contracts. Additionally, it can give the general public access to a convenient means of resolving disputes, which will ultimately lighten the load on the established judicial system.
ODR is sometimes misunderstood to simply mean e-ADR or ADR that is supported by technology. Its potential advantages, nevertheless, go well beyond that of ADR, the mechanism that gave rise to it. ODR can aid in not only dispute resolution but also dispute containment, dispute avoidance, and the advancement of the nation’s overall legal well-being. ODR has already been included in a number of countries, including the US, Canada, Brazil, and the United Arab Emirates, where the government, court, and business institutions are cooperating to make use of ODR’s advantages and promote broader access to justice.
This article is written and submitted by Priyanshi Agarwal during her course of internship at B&B Associates LLP. Priyanshi is a B.A. LLB (Hons) 2nd year student at Maharashtra National Law University, Nagpur.
