This article is written by Girija Rani Mullapudi from Damodaram Sanjivayya National Law University (Vizag).
“One of the best ways to persuade others is with your ears – by listening to them.”
This study centers on India’s new form of justice delivery and the principle of online conflict settlement, with particular emphasis on post-Covid environment as the global pandemic caused the entire country to switch from offline to internet or home methods.
The origins can be traced back to the development in the 90s of the Internet, which increased the number of online transactions and conflicts arising from such transactions. ODRs can generally be separated into three stages in each stage in the globe.
Phase 1: the trial of eBay takes the lead
Phase 2: ODR start-up boom
Phase 3: Government and judiciary adoption
The UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Conciliation Rules were adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985 and 1980, respectively. The United Nations General Assembly (UNGA) has proposed that the said Model Law and Rules be used in situations where a disagreement occurs in international commercial affairs and the parties pursue an amicable resolution by conciliation. The Arbitration and Conciliation Act of 1996, which has been revised many times, has already adopted these uniform rules of ADR. The Arbitration Act establishes alternative dispute resolution (ADR) procedures such as arbitration and conciliation.
ODR IN INDIA
At a Discussion to Support Online Dispute Resolution (ODR) in India, NITI Aayog along with Agami and Omidyar Network India took together the main players. ODR would now use digital technologies and alternative conflict resolution (ADR) methods, such as consultation, mediation and arbitration to resolve conflicts, in individual situations of limited or medium importance. Digitizing courts through judicial interventions is desperately required in order to achieve greater effectiveness, scalability and mutual containment and resolution processes. ODR will contribute to the effective and affordable resolution of disputes.
The general trend was to work together on an online dispute settlement arrangement with several stakeholders in India. Covid-19 has brought about an immediate need for a definitive ODR, with the probability of a flare up of conflicts before the courts, especially in terms of banking, loan, land, business and retail. The ODR could be the framework for prompt resolution in the coming months. A major acknowledgment of the potential ODR offers in India was given by the seminal conference. In the coming weeks there will be a multi-stakeholder exercise to ensure that this is achieved in a safe, effective and collaborative way for the transformation of justice delivery across various facets.
Various reforms were implemented by the Indian government in the last two decades of the twentieth century to improve the ADR ecology in India. The Arbitration and Conciliation Act of 1996, which controlled ADR procedures in India, was the most visible of these changes. The Family Courts Act, 1984, Legal Services Authorities Act, 1987, The Code of Civil Procedure, 1908, Commercial Court Act, 2015, Arbitration and Conciliation (Amendment) Act, 2019, Consumer Protection Act, 2019, Companies Act, 2013 and the Companies (Mediation and Conciliation) Rules, 2016, Indian Evidence Act, 1872, Information Technology Act, 1872.
Some courts have also found that ODR processes are essential in the courts. For example, Justice Ramana claimed that ODR can be used to settle customer, family, company and business conflicts effectively. He pointed out the need for a paper reduction that was part of the system. In reality it began with the use of digital paper books instead of electronically filing them. With the pandemic in COVID-19, Justice Bobde has also acknowledged that it requires action to make the courts virtual so as to ensure the high courts do not shutdown.
In reality, in 2019 the Nilekani panel already initiated a discussion on the structured ODR mechanism in India that recommends that online dispute settlement mechanisms be placed in place to deal with digital payments grievances. The committee recommended that this framework should consist of two tiers – an automatic one and a human one with an appeal clause.
In setting the basis for ODR integration into the nation the Supreme Court has played an instrumental role. It has maintained the authenticity, and has called “fake realities true facts,” of video conferences as a means of prosecution and evidence of witnesses in Maharashtra v. Praful Desai. In Grid Corporation of Orissa Ltd. v. AES corporation, a similar pattern was followed, where the court held that it was not appropriate for people to sit down together in one physically room if consultation could be done by electronic media and remote meeting. In the case of M/S Meters And Instruments Pvt. Ltd. v. Kanchan Mehta, it was noted that there was a need to consider types of cases that could be partially or completely resolved “online” without the parties’ physical presence, and it advised the resolution of simple cases such as traffic challans and cheque bouncing.
In Re: Guidelines For Court Functioning By Video Conferencing During COVID-19, the Supreme Court took suo moto notice of the problem and ordered that courts take the necessary steps to ensure that the judicial system functions properly through the use of video conferencing technology.
REPORT OF THE PARLIAMENTARY STANDING COMMITTEE ON VIRTUAL COURTS
Virtualization of trials, according to the study, would help address significant obstacles in justice implementation, such as distance, delays, and expense. It went on to say that delivering justice by automated courts would expand access to justice while also making the judicial system more accessible and user-friendly. Recognizing the advantages of modern justice systems, the Committee proposed that the definition of automated courts be expanded to include arbitration and conciliation in order to improve the efficiency and cost-effectiveness of justice delivery.
FUNDAMENTAL STRUCTURE OF ODR
These guiding principles can be classified into three categories: legal principles, technology principles, and architecture principles (all of which are illustrative and not exhaustive).
Principles of natural justice
Technology and design principles
Scalability / Adaptability
FUTURE OF ODR IN INDIA
Richard Susskind propounds that access to justice encompasses four layers – legal health promotion, dispute avoidance, dispute containment and authoritative dispute resolution. He points out that the traditional court system has been concerned with only the last two of these. This observation holds true for India as well. The judiciary of the country has systematically employed technology for resolving disputes and keeping the court system alive virtually. However, the time has come for the focus to shift from dispute resolution to dispute avoidance, containment and improving the overall legal health.
Investing in ODR and adopting more advanced second-generation technologies will assist India in moving toward a more innovative justice system. As has been the case for the advancement of ODR so far, these newer developments, which can only employ legal standards but can also extend to better economic outcomes, are expected to succeed. The private sector would almost certainly develop principles for resolving legal conflicts. Consequently, it would be important for the judiciary and the executive to collaborate on these skills and use them for the greater good. usage for the general population. As tough as it can be to believe at the moment, the truth is that the future of conflict is bright. Technology, like artificial intelligence, holds the key to finding a solution.
By developing strategies for better impartial assessment of legal partnerships for early interventions, ODR may play an important role in this. It is clear that India already possesses the necessary components for establishing a robust technology system institutional willingness, experience, and, to a large degree, technologies are all important factors in conflict settlement systems. A flexible approach for greater creativity and change must be implemented in the future in a way that meets both immediate and long-term requirements
Recommendations are as follows:
1. The need for improved access to digital technology (e.g., the National Broadband Mission), as well as increased digital literacy among men and women of all ages, races, and geographies.
2. Build the capacity of experts and service providers to scale up ODR in India by involving the government, judiciary, and companies in a systemic way.
3. The government should focus on policies that promote creativity and new entrants, such as establishing legal software centers and encouraging the creation of customizable remedies for different types of conflicts, among other things.
4. Increasing the capability of court-annexed ODR centers, for example, by providing them with basic ICT infrastructure, relaxing conditions for mediator empanelment, and recognising agencies for court-annexed mediation, and so on.
In my point of view the tangible advantages of ODR, such as its reliability and mobility, go hand in hand with arbitration’s creative, agile, and foreign existence. There is no one-size-fits-all approach to using ODR; it is a set of tools from which arbitrators and parties can choose the best combination for their needs. With the exponential advancement of technology, ODR is both fascinating now and in the future, and the international arbitration community should welcome it. To distinguish the concept of justice from the main principles as court, a significant change in perspective is needed. For the transformation of justice delivery through different facets, multi-stakeholder exercises must conduct to help accomplish this in an effective, effective, and inclusive way.
NITI AAYOG, Catalyzing Online Dispute Resolution In India, http://niti.gov.in/catalyzing-online-dispute-resolution-india ,(last visited on May 13,2021).
Designing the Future of Dispute Resolution: The ODR Policy Plan for India, Draft for Discussion, The NITI Aayog Expert Committee on ODR , pg:54, October 2020, https://niti.gov.in/sites/default/files/2020-10/Draft-ODR-Report-NITI-Aayog-Committee.pdf.
PTI, ‘CJI Bobde bats for law containing compulsory ‘pre-litigation mediation’ (The Week, 08 February 2020) accessed 20 May 2020.
Nandan Nilekani and others, ‘Report of the High Level Committee on Deepening of Digital Payments’ (2019) 97 accessed 30 May 2020.
State of Maharashtra v Praful Desai (2003) 4 SCC 601.
Grid Corporation of Orissa Ltd. v AES Corporation (2002) 7 SCC 736.
M/s Meters and Instrument Private Limited v Kanchan Mehta 2017(4) RCR (Criminal) 476.
In Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic,,2020 SCC OnLine SC 355.
Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, ’Functioning of the Virtual Courts/ Courts Proceedings through Video Conferencing’ (Report no 103, 11 September 2020).
ODR: The Future of Dispute Resolution in India, VIDHI CENTRE FOR LEGAL POLICY, JALDI- JUSTICE, ACCESS & LOWERING DELAYS IN INDIA, https://vidhilegalpolicy.in/wp-content/uploads/2020/07/200727_The-future-of-dispute-resolution-in-India_Final-Version.pdf.
Curated by Shivanshika Samaddar of National Law University, Delhi.