Framework and Statutes for the guidance of Online Dispute Resolution
Online Dispute Resolution (ODR)[1] is in its initial stages but shows huge prospects of growth in the very near future. E-commerce and e-governance in India received official recognition via the Information Technology Act, which was put into effect in 2000. Even India's traditional arbitration law has undergone reform, and the nation now has the Arbitration and Conciliation Act, of 1996, which complies with the UNCITRAL Framework's harmonized requirements. ADR procedures were made available in India by the addition of Section 89 to the Code of Civil Procedure, 1908. ODR is another possibility in this.
Like every other legal process to facilitate and work smoothly, a proper legal framework needs to be formulated. In a country like India, where every aspect of the community is governed by different legal statutes ODR process shall encaptivate various of these statutes to fill in any existing loophole or any loophole which may arise in the future.
Frameworks Guarding the Legal Development of ODR
Aside from the European Convention on International Commercial Arbitration of 1961[2] and the Inter-American Convention on International Commercial 1975[3] supplemented by the Inter-American Convention on Extraterritorial Validity of Foreign Judgements and Arbitral Awards 1979[4], the EU Directive on Electronic Commerce[5], institutional rules, and private contractual agreements, there are two main sources of international arbitration law.
- New York Convention on the Recognition and Enforcement of Foreign Arbitral Award 1958 and,
- UNCITRAL model law on International Commercial Arbitration and Conciliation Rules.
Domestic disputes were settled in the past, before India had courts of law, by an eldest family member, the village Sarpanch, or by Kulas, Srenis, Phugas, or Parishadas. The Charter Act of 1933, the Madras Presidency Regulation Act, and the Bombay Presidency Regulation Act were only a few of the laws that were passed during the British Empire to encourage arbitration. The Indian Arbitration Act of 1940, which was completely based on the English Arbitration Act, however, marked a significant historical turning point. The majority of the arbitration was domestic.
1. Arbitration and Conciliation Act, 1996
The Act was passed based on the UNCITRAL Model Law on International Commercial Arbitration, 1985, and the Conciliation Rules, 1980, and it includes a key provision that harmonises the notions of arbitration and conciliation in various legal systems throughout the world and ensures their universal applicability[6]. The primary goal of the law is to promote mediated dispute resolution at the local, national, and international levels through arbitration and conciliation. In order to promote dispute resolution during arbitral proceedings, it is permissible to use mediation, conciliation, or other processes[7]. The act additionally grants the status of a court judgment under section 73 to settlement agreements concluded by parties as a result of legal procedures[8].
2. The Code of Civil Procedure, 1908
Section 89 of the Civil Procedure Code Amendment Act of 1999, titled "Settlement of Dispute Outside Court," and Rules 1A to 1C, Order 10, titled "Direction of Court to Opt for Any One Mode of ADR After First Hearing of Suit," were added. As a result, courts are now required to request the parties to choose one or more ADR methods when there are elements of the settlement[9].
3. Information and Technology Act, 2000
In order to increase the certainty of online contracts and consequently support e-commerce, the notions of writing and signing have recently undergone considerable modernization[10]. The UNCITRAL Model Law on Electronic Commerce[11], which was adopted in 1996, was the most significant step towards achieving this goal on a global scale. After that, the 2001 UNCITRAL Model Law on Electronic Signatures[12] was adopted. These governmental adjustments led to "a global reform of writing requirement"[13]. To promote e-commerce and provide e-transactions legal status, India created the Information and Technology Act, of 2000, which is based on the UNCITRAL Model Law of e-commerce. Electronic records and signatures are recognized legally by the Act's Sections 4, 5, 10-A, and 11–15[14].
4. The Constitution of India
After gaining independence, India's Constitution was ratified, and Article 21 of that document states that no one may be denied their personal freedom or their right to life unless doing so in accordance with a legal process. The process also needs to be "reasonable, fair, and just."[15] In a landmark judgement, the Supreme Court of India[16] ruled that the right to a quick trial is inextricably linked to the right to life or to the pursuit of one's own happiness.
Conclusion
It is imperative to guarantee that all social groups have inexpensive access to justice. By boosting literacy rates, lowering linguistic and cultural barriers, and facilitating easy access to e-courts, which may aid in the expansion of e-commerce and e-governance, a good communication infrastructure is required for easy access and justice to be given in the shortest possible time and in an adequate manner. To grow the ODR movement and lighten the load on the judiciary, initiatives must be launched on a national and worldwide basis. Therefore, taking action to develop ODR is essential to promoting global peace and international cooperation in cases of international disputes.
[1]Bharat dispute resolution: Resolving your disputes through technology: Ek Bharat, Ek Odr. BDR. (n.d.). Retrieved April 24, 2023, from https://www.bharatdispute.com/#:~:text=BDR%20is%20ensuring%20that%20parties,from%20anywhere%20in%20the%20world.%22 [2] No. 7041 austria, Belgium, Bulgaria, Byelorussian ... - united nations. (n.d.). Retrieved April 24, 2023, from https://treaties.un.org/doc/Publication/UNTS/Volume%20484/volume-484-I-7041-English.pdf [3] Inter-American Convention on International Commercial Arbitration (Organization of American States, Treaty Series, no. 42) entered into force in 1976, available at: http://www.oas.org/juridico/english/sigs/b-35.html [4] Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Organization of American States, Treaty Series, no. 51) entered into force in 1980, available at: http://www.oas.org/juridico/english/treaties/b-41.html [5] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), published in Official Journal of the European Communities dated 17.7.2000, L 178/1, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32000L0031 [6] Justice Dr. B.P. Saraf and Justice S.N. Jhunjhunwala, Law of Arbitration and Conciliation, 5th Edition 2009 published by Ketan Thakkar for for Snow White Publications Pvt. Ltd. at 11. [7] Dr. Anupam Kurlwal, An Introduction to Alternative Dispute Resolution System (ADR), at 181-188, (Central Law Publications, Allahabad, Second Edition, 2014). [8] Arbitration and Conciliation Act,1996, available at: http://www.advocatekhoj.com/library/bareacts/arbitrationandconciliation/index.php?Title=Arbitration%20and%20C onciliation%20Act,%201996 [9] Code of Civil Procedure, 1908, available at: http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/index.php?Title=Code%20of%20Civil%20Pro cedure,%201908 [10] H. Yu & M. Nasir, “Can Online Arbitration Exist Within the Traditional Arbitration Framework?” (2003) 20 J. Int’l Arb. 455 at 459. [11] The UNCITRAL Model Law on Electronic Commerce was adopted by the General Assembly Resolution 51/162 of 16 December 1996, and amended in 1998, available at: http://www.uncitral.org/ [12] See http://www.uncitral.org/english/texts/electcom/ml-elecsig-e.pdf [13] Hörnle, “Online Dispute Resolution: More than the Emperor’s New Clothes” in E. Katsh & D. Choi, eds., Online Dispute Resolution (ODR): Technology as the “Fourth Party”. Papers and Proceedings of the 2003 United Nations Forum on ODR (2003), available at: http://www.odr.info/unece2003/pdf/Hornle.pdf [14] Information Technology Act, 2000 available at: http://www.advocatekhoj.com/library/bareacts/informationtechnology/index.php?Title=Information%20Technology%20Act,%202000 [15] Maneka Gandhi v. U.O.I, AIR 1978 SC 597. [16] Hussainara Khatoon (1) v. Home Secretary, State of Bihar (1980) 1 SCC 81
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