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RESOLVING DISPUTES VIRTUALLY: AN ANALYSIS OF POSITION IN INDIA
The COVID-19 pandemic accelerated this trend, propelling the emergence of Online Dispute Resolution (ODR). Whether a response to the pandemic or a natural progression of ADR, this evolution requires examination. This article analyses ODR's development within India's legal framework and the judiciary's response. It argues that despite its newness and lack of explicit legal recognition, ODR is finding acceptance within India's legal system. This paper focuses particularly on the potential for e-arbitration.
Scope of Online Disputes Resolution in India
The Indian Arbitration Act doesn't explicitly address whether arbitration proceedings can be conducted electronically through video conferencing or other online methods. This raises questions about the legal validity of agreements opting for online arbitration (e-arbitration) and the arbitral process itself.
Foonotes [1] Shakti Bhog v. Kola Shipping (2009) 2 SCC 134. [2] Trimex International v Vedanta Aluminium Ltd (2010) 3 SCC 1. [3] SBI Cards and Payments Services Pvt. Ltd. v. RohidasJadhav, (2018) SCC OnLineBom 1262. [4] Tata Sons Limited &Ors. v. John Doe(s) &Ors., (2017) SCC OnLine Del 8335. [5] SBI Cards and Payments Services Pvt. Ltd. v. RohidasJadhav, (2018) SCC OnLineBom 1262. [6] Suo Motu Writ Petition (C) No. 3/2020. [7] Information Technology Act 2000, s 4. [8] Information Technology Act 2000, s 5. [9] Indian Evidence Act 1872, s 65B. [10] Arbitration and Conciliation Act, 1996, s 18. [11] State of Maharashtra v. Praful B. Desai (2003) SCC Online SC 447. [12] In Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic, Suo Moto (Civil) Writ No. 5 of 2020, Order dated 6 April 2020. [13] Sonal Kumar Singh and others, ’Covid-19 and E-Arbitrations: An India Perspective’, (Lexology, 30 July 2020), https://www.lexology.com/library/detail.aspx?g=40e5193a-22d0-411c-97e7-222dc434c285 [14] SEBI notification SEBI/LAD–NRO/GN/2023/137 dated 3 July 2023. [15] Shruti Ranjan, Anurag Gupta, Pranvi Jain, ‘SEBI’s Online Dispute Resolution| reimagining investor protection & grievance redressal’ (Bar and Bench, 5 September 2023), https://www.barandbench.com/columns/sebis-online-dispute-resolution-reimagining-investor-protection-grievance-redressal. [16] NitiAayog and others, Online Dispute Resolution Handbook, 14 April 2021. [17] Santhini v. VijayaVenkatesh, (2018) 1 SCC 1. [18] Draft Mediation Bill (2021), s 6.
- E-arbitration agreements
- E-service of notices, summons, pleadings etc.
- E-Conduct of proceedings
The integration of ODR in securities market dispute resolution stands to revolutionize procedural aspects and timelines significantly. By harnessing digital technology and the internet, ODR facilitates efficient and accessible dispute settlement, reducing reliance on traditional, costly, and time-consuming legal processes. Parties can engage in resolution efforts regardless of geographical constraints, contributing to convenience, affordability, and impartiality. ODR's potential to enhance accessibility and user experience suggests its suitability as a model for a globally inclusive and efficient conflict resolution framework.
Issues in implementation of E-arbitration in India Challenges to Implementing Online Dispute Resolution (ODR) in India:-
- Lack of legal clarity: The existing arbitration framework doesn't explicitly address online arbitration, requiring physical documents and signatures, creating ambiguity regarding its legality.
- Security concerns: Data security and confidentiality are crucial for commercial arbitration, and doubts remain about ODR's ability to prevent data breaches or unauthorized access, potentially undermining its attractiveness.
- Digital divide: Technology access and familiarity vary across India, with many individuals lacking the necessary equipment or comfort level with online platforms, hindering wider adoption.
- Technical limitations: Infrastructure limitations like unreliable internet connectivity, especially outside major cities, and bandwidth issues can disrupt the effectiveness and accessibility of ODR.
Foonotes [1] Shakti Bhog v. Kola Shipping (2009) 2 SCC 134. [2] Trimex International v Vedanta Aluminium Ltd (2010) 3 SCC 1. [3] SBI Cards and Payments Services Pvt. Ltd. v. RohidasJadhav, (2018) SCC OnLineBom 1262. [4] Tata Sons Limited &Ors. v. John Doe(s) &Ors., (2017) SCC OnLine Del 8335. [5] SBI Cards and Payments Services Pvt. Ltd. v. RohidasJadhav, (2018) SCC OnLineBom 1262. [6] Suo Motu Writ Petition (C) No. 3/2020. [7] Information Technology Act 2000, s 4. [8] Information Technology Act 2000, s 5. [9] Indian Evidence Act 1872, s 65B. [10] Arbitration and Conciliation Act, 1996, s 18. [11] State of Maharashtra v. Praful B. Desai (2003) SCC Online SC 447. [12] In Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic, Suo Moto (Civil) Writ No. 5 of 2020, Order dated 6 April 2020. [13] Sonal Kumar Singh and others, ’Covid-19 and E-Arbitrations: An India Perspective’, (Lexology, 30 July 2020), https://www.lexology.com/library/detail.aspx?g=40e5193a-22d0-411c-97e7-222dc434c285 [14] SEBI notification SEBI/LAD–NRO/GN/2023/137 dated 3 July 2023. [15] Shruti Ranjan, Anurag Gupta, Pranvi Jain, ‘SEBI’s Online Dispute Resolution| reimagining investor protection & grievance redressal’ (Bar and Bench, 5 September 2023), https://www.barandbench.com/columns/sebis-online-dispute-resolution-reimagining-investor-protection-grievance-redressal. [16] NitiAayog and others, Online Dispute Resolution Handbook, 14 April 2021. [17] Santhini v. VijayaVenkatesh, (2018) 1 SCC 1. [18] Draft Mediation Bill (2021), s 6.