“ONLINE DISPUTE RESOLUTION MECHANISM:EXPANSION OF ALTERNATE DISPUTE RESOLUTION MECHANISM IN INDIA”

  1. INTRODUCTION

The right of ‘access to justice’ stands meaningless if individuals merely do possess such right without any mechanism for the vindication of the same. The effective access to justice enunciates the exploration of wide variety of reforms within its notion and the reasons for such exploration are not much in dispute. Congestion in courts, lack of adequate manpower and the resources and the consequent procedural delay at every step of the hierarchy of the court are some of the major factors which are ailing the formal legal system of the traditional court room litigation. On the other hand, the globalization of economy and the complexities of modern commercial transaction demand speedy and effective mechanism for the speedy redress of the allied disputes. With the Indian economy’s massive strides towards becoming a global force, bolstering the dispute resolution has been one of the top priorities for the policy makers given its direct impact on ‘the ease of doing business’ in India. To cope with the insurmountable challenge of arrears, the use of private and informal dispute resolution mechanism which is known as Alternative Dispute Resolution (ADR) hails as one of the most important attributes to the said exploration of various reforms. Within the stretches of ADR mechanism better and faster ways are being developed to settle disputes at every sec of the clock. One such way making its growth in the world of dispute resolution it the advanced and technical method of Online Dispute Resolution (ODR). From smart phones to artificial intelligence technology is reaching for progressive ways of communication and as disputes arises in course of these communications what can be a better way of resolving them than using a different algorithm, a different view of the same technology.

  1. ONLINE DISPUTE RESOLUTION (ODR)

Online Dispute Resolution mechanism is a modern day ADR technique which uses internet to resolve disagreements between two parties. No legislation defines ODR in any specific terms it is only understood as a technique which channelize dispute settlement in cyberspace. Farah defined ‘Online Dispute Resolution’ to mean utilizing information technology to carry out alternative dispute resolution[1]. 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[2]

In its inception it was only considered as a medium for solving virtually originated disputes but now ODR is used in case of traditional offline disputes also. Thus, the horizon of the methodology has expanded with the change in time. The idea of ODR was first published in a series of online articles by VirtualCourthouse in 1996.[3] According to Professor Ethan Katsh and professor Janet Rifkin, who are considered as the pioneers of the concept the structure of ODR stands on three essential factors, namely convenience, trust and expertise.[4] As the entire process of solving disputes online occurs in an intangible framework at times of devoid of even slightest physical interference, it demands a higher degree of vigilance than usual ADR methods.

  1. HISTORY OF ODR

Not only has the development of society and technology magnified the complexities of human life they also aid in eliminating the same by providing effective means. Thus, by invention of World Wide Web in 1989 and the appearance of first Internet Service Provider in 1992, online dispute resolution mechanism found its way into the world. Professor Ethan Katshis the leading researcher and developer of this concept. From 1997 to 1999, he had mediated a variety of disputes online, involving domain name/trademark issues, intellectual property conflicts, disputes with Internet Service Providers, and others. He also supervised a project with the online auction site eBay, in which he mediated over 150 disputes in two week period. He went on to the co-founded Disputes.org, which later worked with e-Resolution to become one of the four providers accredited by ICANN to resolve domain name disputes.Along with Professor Rifkin he wrote Online Dispute Resolution: ResolvingConflicts in Cyberspace (2001), the first book about ODR and personified technology as a “Fourth Party” in Online Disputes.[5]

In 1996, the National Centre for Automated Information Research(NCAIR) sponsored the first conference devoted to ODR,[6] and funding from it was used to launch the few significant ODR projects, the Virtual Magistrate, the Online Ombudman’s Office at the University of Massachusetts and a number of ODR project at the University of Maryland.Virtual Magistrate and Online Ombudman’s office resolved matters of e-defamation and website copy right infringement.[7]Later the Hewlett Foundation with the aim to evolve ODR provided grant to the Universityof Massachusetts to establish the Centre for Information Technology and DisputeResolution (later the National Centre for Technology and Dispute Resolution). It organised Cyberweek, an all-online conference that enabled over fourhundred persons from many different countries to engage in discussions about ODR.[8]In 2002 and 2003 in Geneva, Daewon Choi, an official of the United Nations Economic Commission for Europe conducted the first International ODR Forum. Since then each year Professor Katsh has chaired it 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) andParis (2017).[9]

International front has witnessed extensive development in the field of ODR. The United Nation Commission on International Trade Law lays down adequate conditions for enhancement of ODR. UNCITRAL finalized and adopted the Technical Notes on ODR at its forty-ninth session in 2016. Although the notes are non-binding, it takes the form of a descriptive document reflecting quintessential elements of the mechanism.[10]

  1. REASONS WHY ODR IS NEEDED

There stands no doubt as to the necessity of ODR. The ODR mechanism promises to enable ADR to become more efficient, faster, and less expensive.[11]Given the affordable technological infrastructure abundantly available, it is certain that ODR would be the preferred medium for dispute resolution even when both the parties reside in the same city. This is so because in most metropolitan cities, due to the traffic during peak hours, it takes an average of an hour and a half to get into the heart of the city. Considering that it could take an equal amount of time to get back, a party would be well off attending the said meeting via video-conference so that he saves that extra fifty per cent time that he would have spent in traffic. Furthermore, his presence may not be required for all the time in which case he can conveniently log off and, being a businessman, get down to negotiating some or the other deal instead of negotiating his vehicle through the traffic for another hour or so. A party even saves on legal costs as lawyers, and especially counsels, charge by the hour and hence they could be engaged for a shorter duration if the proceedings are conducted online. And if the neutral and/or the other party are in another city, this would save also the cost of transport and accommodations. The additional benefit of conducting proceedings online is that this affords the parties to engage the services of experts in any field who, due to their various other commitments, would not be available thanks to the time-consuming efforts of attending an off-line meeting.

 

ODR may also assist in addressing a situation arising out of cross border e-commerce transactions, namely the fact that traditional judicial mechanisms for legal recourse may not offer an adequate solution for cross-border e-commerce disputes.[12]

 

  1. ESSENTIAL REQUISITES FOR APPLICATION OF ODR

Application of ODR requires the presence of certain crucial components such as existence of advance informational technology, trained expert professionals, user friendly interface of online modules and maintenance of privacy of the disputants.Besides these components the generic principles of affordability, accessibility, infrastructure, flexibility and transparency forms the basic structure of the mechanism.The components and the principles open up for empirical research to envision a triangle of convenience, expertise and trust. These three factors assist in attracting users and services over time. The degree of factor may vary according to the usage. In respect of ODR the triangle shall have a longer convenience side.[13] Unlike other ADR mechanisms ODR ought to be simpler, faster and more efficient, in order to be able to be used in a “real world setting”, including that it should not impose costs, delays and burdens that are disproportionate to the economic value at stake.[14]

 

  1. Binding Agreement

An agreement stipulating the mutual consent of the parties to settle any future matter by course of ODR technique shall consists of essentials of a valid contract as per Section 10 of the Indian Contract Act. It should be contracted by persons capable of contracting; to be formed for legal consideration with mutual consent and should be valid in the eyes of law. Thus, the want of mutual consent for invocation of ODR process is such that without it all orders of any ODR institution will stand invalid. With respect to Indian jurisprudence there are no concrete guidelines for online dispute settlement in any statute. Although the technique can be brought to use by referring to definite sections of Arbitration and Conciliation Act and Information Technology Act, lack of desired laws leaves way for contracts to provide sanction to ODR.

  1. Determining Jurisdiction

Jurisdiction defines the limits of an adjudicating authority. In case of conduction of ODR, determination of jurisdiction gives apprehension of its decision.The place of occurrence of dispute directs the application of international and domestic laws, understanding of the facts and nature of the settlement process. In mid-1990s the Courts, were struggling with the jurisdictional questions such as where an event occurred if parties were in different places and were interacting online.[15] Expansive legalisation of domestic laws and profound judgements of the Indian Courts have not only solved this riddle but have also accepted the cyber world as a real place. ODR service providers are obligated to disclose the jurisdiction, where complaintsagainst the ODR provider can be brought, and any relevant jurisdictionallimitations[16]

  1. Transparency

Settlement of a dispute through an ODR institution is a matter of availing services from a provider. The provider cannot take advantage of the virtual world to commit fraud or cause unwanted loss to its clients. The underlining doctrine of accessibility makes the principle of transparency a critical aspect of ODR. All information and disclosures, regardless of form, should be accurately and completely stated, should be presented as clearly and simply as the substance permits in identifiable and accessible formats, and should present the most important points in an appropriately conspicuous manner. It should be printable and able to be downloaded electronically.[17] Indian courts are made a court of record for the sole reason of maintaining transparency and making the orders and judgements available to the masses.

  1. Privacy

The unending debate of privacy of an individual gets complicated with every day evolving technology. The Apex Court has held privacy to be a matter of personal liberty within Article 21 of the Indian Constitution. In the most recent case on privacy[18] the bench, headed by Chief Justice and eight other judges unanimously declared that individual privacy is a “guaranteed fundamental right”. The judgement makes privacy an indispensable ingredient of day’s world. ODR procedures are to work retaining the concept of preservation of one’s privacy. They are to balance the contrary and collateral fundamentals of transparency and privacy.  Purpose of ODR is to settle disputes and not to create one by infringing an individual’s privacy. The ODR modules should be accurate and specific as to what they disclose and what they do not. Minimum level of information likecontact and organizational information, terms and conditions anddisclaimers for the service, explanation of services/ADR processesprovided any pre-requisites for use of service like geographical location ormembership[19] should be mentioned distinctively. It is required that the ODR organisations state their confidentiality policy meticulously.

  1. Advanced Technology

ODR providers should be equipped with the latest and the apt technology to keep the process straightforward. The providers should disclose all relevant facts as to the technology they use. Its flaws, any history of mishappening or data leakage should be communicated by them. The technology should be accessible to persons of all language and low level of literacy, it should be affordable, it should be secured and apposite in preserving the privacy of the parties.

 

  1. Expert and Trained Professionals

The ODR providers should be well trained professionals. They are to be experts in both the fields of dispute management and information technology.Even though internet has become an everybody’s thing and have connected masses from all countries and sectors, it is viewed with sceptical eyes and requires vigilance at every step.Without a specialist’s direction, it is difficult to track and get the know-how of everyday development of technology and to understand the complexities of law. The ODR providers are to provide all material details of their members, their relationship with other organisations of similar or dissimilar nature. They are to create a team consisting of arbitrators, mediators and counsellors; their eligibility, background and affiliations to any interested party must be disclosed by the providers. The providers should appoint neutral arbitrators to the disputes and make desired research in the history of the appointed members and the disputant parties to check for any affiliations. They should disclose the steps they take to require neutrals to fulfil their responsibilities promptly, maintain communication with the parties, and comply with the stated ethical guidelines. Also, what steps can the participant take to file complaints for neutrals’ failure to comply with the ethical requirements.[20]

  1. TYPES OF ODR MECHANISM IN USE

ODR can involve varied methods of dispute resolution including Negotiation, Conciliation , Mediation, Arbitration and hybrid mechanisms including Last offer arbitration, Medola, Mini trial, Med Arb and Neutral Evaluation. ODR may adopt either adjudicatory or non-adjudicatory process. An example of an adjudicatory process is an arbitration where the award passed by the arbitrator is binding on both parties. To the contrary, in a non-adjudicatory process, the principal aim is to arrive at a settlement of the disputes between the parties without deciding on the merits of the matter.

  1. CONSENSUAL
  2. Automated Negotiation

Automated negotiation relates to those methods in which the technology takes over (aspects of) a negotiation. This is a negotiation process designed to determine economic settlements for claims in which liability is not challenged. There are two forms of automated negotiation, double blind bidding, which is a method for single monetary issues between two parties, and Visual Blind Bidding, which can be applied to negotiations with any number of parties and issues.

Automated negotiation has proven to be particularly successful with insurance compensations and commercial activities. It is also a valuable tool for lawyers because they too can use it without revealing what they’re willing to accept (unless an agreement is reached) and more importantly, without waiving their right to access the court, in the case that the negotiation is unsuccessful.

Thus, ODR is useful for resolving brick and mortar disputes that arise in businesses, insurance companies and municipalities, who are finding that ODR saves them money and time when dealing with B2C disputes.[21]

  1. Assisted negotiation

In assisted negotiation the technology assists the negotiation process between the parties. The technology has a similar role as the mediator in mediation. The role of the technology may be to provide a certain process and/or to provide the parties with specific (evaluative) advice.

Mediators use information management skills encouraging parties to reach an amicable agreement by enabling them to communicate more effectively through the rephrasing of their arguments. Conciliation is similar to mediation, but the conciliator can propose solutions for the parties to consider before an agreement is reached. Also, assisted negotiation procedures are designed to improve parties’ communications through the assistance of a third party or software. In fact, it has been argued that assisted negotiation, conciliation, and even facilitation, are just different words for mediation.[22] The major advantages of these processes, when used online, are their informality, simplicity and user friendliness.[23]

 

 

  • Expedient Non-Adjudicative Online Resolution

Another form of alternative dispute resolution prioritizes expedience and dispenses with adjudication all together, in recognition of the litigants’ desire to simply dispose of the matter as quickly as possible. By removing any hint of adjudication, services (e.g., One Day Decisions) “fast track” a version similar to blind bidding which is restricted privately to the two parties and an algorithm determines a fair value to be accepted by each party. Unlike other services, once accepted by both parties, the settlement amount is applied to the issuance of a Certificate of Final Resolution which both parties accept as irrevocable proof of resolution and final settlement. By avoiding adjudication, expedient non-adjudicative online resolution saves litigants time in court, time away from work and other fees and expenses, while protecting each from ancillary damage: The winning party generally collects more of his disputed amount and the losing party suffers no credit damage from having a judgment entered against him. Expedient Non-Adjudicative Online Resolution is generally utilized in cases that might otherwise be heard in small claims or limited civil matters.

  1. ADJUDICATIVE
  2. Online Arbitration

Arbitration is a process where a neutral third party (arbitrator) delivers a decision which is final, and binding on both parties. It can be defined as a quasi-judicial procedure because the award replaces a judicial decision. Arbitrators can be current or former trial judges, but that is not a requirement. However, in an arbitration procedure parties usually can choose the arbitrator and the basis on which the arbitrator makes the decision. Furthermore, it is less formal than litigation, though more than any other consensual process. It is often used to resolve businesses’ disputes because this procedure is noted for being private and faster than litigation. Once the procedure is initiated parties cannot abandon it, unless they both agree to discontinuing it (e.g. when they reached a settlement – although usually the settlement will be communicated to the arbitral tribunal and an award rendered on this basis). Another feature of arbitration is that the award is enforceable almost everywhere due to the wide adoption of the 1958 ‘New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards’.[24] Moreover, arbitral awards prove frequently easier to enforce than court decisions from overseas.

The majority of legal studies on online arbitration agree that, neither law, nor arbitral principles, prevent arbitration from taking place online.[25] However, there may be several aspects in online arbitration that need to be regulated. Although online arbitration seems admissible under the New York Convention and the E-Commerce Directive, this is arguably an assumption by most commentators, rather than a legal statement.[26] Since arbitration is based on a contractual agreement between the parties, an online process without a regulatory framework may generate a significant number of challenges from consumers and other weaker parties if due process cannot be assured. Currently, most arbitration providers allow parties to carry out online only part of the arbitration process, e.g. parties may download claim forms, the submission of documents through standard email or secure web interface, the use of telephone hearings, etc.[27]  Other providers conduct their proceedings exclusively online, either by email or on a dedicated web platform.[28] The main challenge for online arbitration is that if judicial enforcement is required then it partly defeats the purpose of having an online process. Alternatively, some processes have developed self-enforcement mechanisms such as technical enforcements, black lists and trustmarks.

  1. DEVELOPMENT OF ODR IN INDIA

Various factors support development of ODR system in India such as:

  • Flexibility in adjudication by way of online process/ choice of procedure- The Arbitration & Conciliation Act, 1996 The subtle difference in the 1996 Act with regard to the provisions relating to conciliation proceedings as opposed to arbitration proceedings is that the 1996 Act does not restrict the application of its provisions to conciliation proceedings taking place in India only. This provision hence affords parties the flexibility to hold their proceedings anywhere, even in cyberspace.
  • Electronic records and signatures- Information Technology Act, 2000 The Information Technology Act, 2000 Act (the 2000 Act) was enacted with a view to facilitate and encourage e-commerce and hence gives legal recognition to electronic records and digital signatures. The enactment of this Act has also brought with itself amendments to several other Acts. It is a law meant to be “applicable to alternatives to paper based methods of communication and storage of information”.
  • Video conferencing– In a recent case[29] it was held that video-conferencing could be resorted to for the purpose of taking evidence of a witness. Addressing the various submissions made before it, the apex Court stated that “Virtual reality is a state where one is made to feel, hear or imagine what does not really exist. Video-conferencing has nothing to do with virtual reality. Video-conferencing is advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence.” “This is not virtual reality, it is actual reality.”[30] Further the Court observed “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”. The IT Act enumerates that electronic records and signatures can be introduced as evidence and given legal recognition under the Indian legal system ( S. 4, 5 & 65-B).  In State of Maharashtra vs. Dr. Praful B. Desai (2003 4 SCC 601), the Supreme Court acknowledged the use of video conferencing to record witness statements. Therefore, the submissions and the proceedings can take place online.
  • Usage of internet– In yet another decision[31] in which use of available technology has been given a real boost, the Supreme Court held that “Technological advancement like fascimile, Internet, e-mail, etc. were in swift progress even before the Bill for the Amendment Act was discussed by Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.”[32]
  • Written online agreement-For this purpose, one needs to read the Indian Arbitration and Conciliation Act, 1996 (Arbitration Act) with the Information and Technology Act, 2000 (IT Act). A few issues are considered below to demonstrate the point. (1) Arbitration agreement shall be in writing: Section 7(3) of the Arbitration Act provides that the arbitration agreement shall be in writing. However, if the parties agree online to refer the matter to an online arbitration through an ODR service provider, the question arises as to whether such an online agreement will be valid in law. Presuming that both parties admit that such an online agreement was made, it will have the sanction of law due to operation of section 4 of the IT Act. By reading section 4 of the IT Act into section 7(3) of the Arbitration Act, such an online agreement will be a valid one in the eyes of law. The same goes for written submissions, if any, made by the parties online.[33]
  • Provision for e-award-Award to be in ‘writing’ and ‘signed’; Section 31(1) of the Arbitration Act requires the arbitral award to be in writing and signed by the members of the arbitral tribunal. As far as the ‘writing’ requirement is concerned, that is answered by section 4 of the IT Act. As regards the ‘signature’ requirement, section 5 of the IT Act provides that digital signature would have the same legal effect as a paper signature.[34]
  • There have been instances where the parties have decided upon arbitration through emails (Shakti Bhog Foods Ltd. V. Kola Shipping Ltd., (AIR 2009 SC 12); Trimex International FZE Ltd. v. Vedanta Aluminium Ltd.(2010) 3 SCC 1). Finally, when the award is declared, as per S.31 of Arbitration Act, it can be exchanged via emails by sending scanned copies. The original copy can be sent later via post. This completes the procedure and the only thing left is the enforcement of the award, a decree for which can be easily obtained in a court. Therefore, the crux of the matter is that practicing ODR is perfectly valid in India. It is even being used currently by the National Internet Exchange of India (NIXI) for domain name dispute resolution. It is similar to traditional arbitration but the only difference is that it is conducted over the internet. Therefore, the law applicable to traditional arbitration is to be applicable to ODR also. Just as ADR is legal in India, so is ODR.[35]
  1. INTERNATIONAL RECOGNITION

Since the beginning of the 21st century, the use of the Internet has grown at a rate of 566.4% as a result of the rapid evolution of ICT.[36] Thus there is imminent need of introduction of ODR in our ADR system. ETHAN KATSH (a prominent name in the field of ODR) refers to this phenomenon of ODR, ‘a commerce revolution’.[37] Consequently, there has increase in the number of disputes arising from it carried out in cyberspace. Such online claims (Business to Business), B2C (Business to Consumer) (Consumer to Consumer) e-contracts. Therefore, it seems natural for all of them to be resolved in an online environment. When talking about disputes settled in cyberspace, we are in the land of ODR.[38]

Promoting the use of alternative methods of dispute resolution has been a focal point in European Union (EU) civil justice. As yet it has met with only limited success, although in some member states well-functioning ADR mechanisms are in place.[39] A directive of 2008 regulates a number of issues regarding cross-border mediation,[40] and in 2013, two related instruments were adopted to more actively enhance the use of ADR in both in cross-border and domestic consumer disputes.[41] The first one, a directive on consumer ADR, provides the legal frame-work obliging member States to enable consumers and traders to submit their disputes to ADR. (It applies to C2B disputes, and only where national law permits B2C disputes.) It outlines the principles of ADR (including impartiality, transparency, effectiveness, fairness, and liberty), and provides rules on information to the consumer and on cooperation among ADR entities.[42]

The European Commission has developed an ODR platform (single point of entry) pursuant to this regulation that has been operational since February 2016.[43] This platform links to the national ADR entities that are authorized in accordance with the directive on consumer ADR. The main functions of the ODR platform are to provide an electronic complaint form; to inform the respondent; to identify the competent ADR entities and transmit the complaint to the agreed entity; to offer a free-of-charge electronic case management tool; to provide translations; to provide an electronic form to the ADR entity to submit information and the result of the ADR; to provide information; and to generate data.[44] Each member State has designated an ODR-contact point, hosting at least two advisers, who—particularly in cross-border cases—provide assistance in the use of the ODR platform.[45] By means of this platform, consumers can, free of charge, submit their complaints online by filling out a standard form.[46]The completed complaint form will be processed and transmitted to the trader, informing the latter that parties have to agree on ADR and on the competent ADR entities. The trader should indicate within 10 days whether he or she is obliged to use a specific ADR entity (e.g., for a specific branch of business) or is willing to accept one of the identified ADR entities.[47] If parties agree to ADR and on the ADR entity, the complaint will be automatically transmitted to the ADR entity. If this entity agrees to deal with the dispute, it must finalize the dispute within 90 days, and will communicate the outcome through the platform.[48]

  1. CONCLUSION

The late Neil Postman described the effects of technological change as follows:

Technological change is a trade-off. I like to call it a Faustian bargain. Technology give and technology take away. This means that for every advantage a new technology offers, there is always a corresponding disadvantage.Thus, the same technology which supports the development of all aspects of one’s life, also bigots disputes and also provide effective means for settling the same. Advantages like affordability, and connectivity of technology forms primary source of ODR.

Settlement of disputes by way of internet has gained immense popularity in developed nations like Europe and USA and with International sanctions and guidelines future of ODR is exceptional. The day is not far when ODR, as a way of arbitration will soon become a necessity for the world. Information technology, society, human relations, human interactions, commercial activities and laws a step higher in all these fields is a step towards ODR. With respect to India the trend of arbitration has seen considerable growth in past few years. Deeper research in the field of arbitration and other ADR mechanisms are been encouraged. Legal fraternity is working day and night to mitigate flaws in the current system and to develop upgraded methods for harmonious working of the society. In backdrop of such developments and followance of doctrine of “justice delayed is justice denied” by the courts; ODR is indeed the new face of arbitration in India.

 

END NOTES :

[1]Farah C, Critical analysis of online dispute resolution:optimist, realist and the bewildered, 11(4) COMPUTER TELECOMMUNICATIONS LAW REVIEW,123-128.

[2]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, 2004 (1) JOURNAL OF INFORMATION LAW AND TECHNOLOGY

[3]What You Should Know About Online Dispute Resolution Hon. Arthur M. Monty Ahalt (ret.)

[4]Katsh E, Online Dispute Resolution : some implications have emergence of law in cyber space, v. 10 n. 3LEX ELECTRONICA, 2006, http://www.lex-electronica.org/articles/v10-3/katsh.htm

[5]Ethan Katsh, ODR.INFO The National Centre for Technology and Dispute Resolution, http://odr.info/ethan-katsh/

[6]<www.odr.info/ncair>

[7]See Centre for Technology and Dispute Resolution, Online Ombud’s narrative 1 :website developer and the newspaper at www.ombuds.org/narrative 1.html

[8]<www.odr.info>.

[9]<www.odr.info>.

[10] UNCITRAL Technical Notes on Online Dispute Resolution

[11]Prathamesh D. Popat, Online Dispute Resolution In India, Proceedings of the UNECE Forum on ODR 2003, http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan021307.pdf

[12]UNCITRALTechnical Notes on Online Dispute Resolution

[13]Ethan Katsh& Colin Rule , What We Know And Need To Know About Online Dispute Resolution, 67 S.C. L. REV. 329 (2016)

[14]UNCITRALTechnical Notes onOnline Dispute Resolution

[15]See, for example, Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997) and Bensusan Restaurant Corp. v. King, 126 F.3d 25 (1997).

[16]DevashishBharuka, Online Alternative Dispute Resolution, THE INDIAN COUNCIL OF ARBITRATION, http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA1.htm

[17]Ibid.

[18]Justice K S Puttaswamy (Retd.), and Anr. V. Union Of India And Ors., Writ Petition (Civil) No. 494 of 2012

[19]DevashishBharuka, Online Alternative Dispute Resolution, THE INDIAN COUNCIL OF ARBITRATION, http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA1.htm

[20]Ibid.

[21] J. Krause, Settling it on the Web. New Technology, Lower Costs Enable Growth of Online Dispute Resolution” AMERICAN BAR ASSOCIATION JOURNAL (October 2007)

[22]P. Jacobs, Mediation Now and Then, M. P. BARBEE, NEWSLETTER, MEDIATION, INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION, p.14 (July 2007)

[23]MOTION P., ARTICLE 17 ECD: ENCOURAGEMENT OF ALTERNATIVE DISPUTE RESOLUTION. ON-LINE DISPUTE RESOLUTION: A VIEW FROM SCOTLAND,  THE NEW LEGAL FRAMEWORK FOR E-COMMERCE IN EUROPE 145 (Oregon and Portland ed., Hart Publishing, 2005)

[24]  The New York Convention has currently more than 150 signatories. See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration.html; Cf. J. M. Matthews, Consumer Arbitration: Is it Working Now and Will it Work in the Future?  79 THE FLORIDA BAR JOURNAL  1 (2005)

[25] E. KATSH, AND J. RIFKIN, ONLINE DISPUTE RESOLUTION: RESOLVING CONFLICTS IN CYBERSPACE (San Francisco, Jossey-Bass) (2001)

[26] R. Morek, The Regulatory Framework for Online Dispute Resolution: A Critical View, 38 Tol. L. Rev. 165. (2006)

[27] L. Ponte and T. Cavenagh, Cyberjustice, Online Dispute Resolution for E-Commerce (New Jersey, Parson Prentice Hall, 2005) p. 84; European Commission, SANCO, The Study Centre for Consumer Law, Centre for European Economic Law KatholiekeUniversiteit Leuven, Belgium, “An Analysis and Evaluation of Alternative Means of Consumer Redress other than Redress through Ordinary Judicial Proceedings” The United States National Report, Leuven, January 2007. p. 7 Currently the AAA provides Webfile and Neutrals’ eCentre web-based platform to parties and neutrals for the management of the procedures. Cf. <www.adr.org>; See B. Davis “Symposium Enhancing Worldwide Understanding Through Online Dispute Resolution: Walking Along in the Mission” 38 (2006) U. Tol. L. Rev. 2.

[28]<http://www.anywherearbitration.com/how-it-works.html>

[29]State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601

[30]ibid

[31]Sil Import, USA v. Exim Aides Exporters, Bangalore (1999) 4 SCC 567

[32]ibid

[33]DevashishBharuka, Online Alternative Dispute Resolution, THE INDIAN COUNCIL OF ARBITRATION, http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA1.htm

[34]Ibid.

[35]The Legality of ODR in India,THE ODR BlOG, http://blog.odrways.com/the-legality-of-odr-in-india/

[36]Internet Usage Statistics: The Internet Big Picture: World Internet Users and Population Stats, Internet World Stats: Usage and Population Statistics, INTERNET WOLD STATS, (June 30,  2012), http://www.internetworldstats.com/stats.htm (last visited Sept. 28, 2013

[37] Ethan Katsh, Online Dispute Resolution: Some Lessons from the E-Commerce Revolution, 28 N. Ky. L. Rev. 810, 821

[38]María Mercedes Albornoz and Nuria González Martín, Feasibility Analysis of Online Dispute Resolution in Developing Countries, Vol. 44, No. 1 (Fall 2012) THE UNIVERSITY OF MIAMI INTER-AMERICAN LAW REVIEW 39-61 (2012)

[39]See CHRISTOPHER HODGES, CONSUMER ADR IN EUROPE (Iris Benöhr and Naomi Creutzfeldt-Banda, eds., Oxford: Hart Publishing, 2012).

[40] Directive 2008/52/EC of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, Official Journal 2008, L 136/3.

[41] Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), Official Journal 2013, L 165/63; Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR), Official Journal 2013, L 165/1. For an overview of these instruments, see Michael Bogdan, “The New EU Regulation on Online Resolution for Consumer Disputes,” Masaryk University Journal of Law and Technology 9:1 (2015) at 155.

[42] XANDRA E KRAMER, ACCESS TO JUSTICE AND TECHNOLOGY: TRANSFORMING THE FACE OF CROSS-BORDERCIVIL LITIGATION AND ADJUDICATION IN THE EU, (University of Ottawa Press) (2016)

[43]https://webgate.ec.europa.eu/odr/.

[44]Article 5(4) Regulation on consumer ODR.

[45]Article 7 Regulation on consumer ODR.

[46]Article 8 Regulation on consumer ODR.

[47]Article 9 Regulation on consumer ODR.

[48]Article 10 Regulation on consumer ODR.

 

Author : HARSHITA RAJNISH & SHREET RAJ JAISWAL FACULTY OF LAW, LUCKNOW UNIVERSITY, LUCKNOW