Professional Documents
Culture Documents
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ACKNOWLEDGEMENT
I am highly elated to have worked on my research topic Online Dispute Resolution under
the guidelines of Mr Hrishikesh Manu Faculty of Alternate Dispute Resolution. I am very
grateful to him for his proper guidance. I would like to take this opportunity to express my
profound gratitude and deep regard to him for his exemplary guidance, valuable feedback and
constant encouragement throughout the duration of the project.
His valuable suggestions were of immense help throughout my project work.
His perceptive criticism kept me working to make this project in a much better way. Working
under him was an extremely knowledgeable experience for me.
I would also like to thank all my friends and my seniors and apart from all these I would like
to give special regard to the librarian of my university who made a relevant effort regarding
to provide the materials to my topic and also assisting me.
Finally I would like to thank my parents and brother for their immense support and presence
during this whole project work.
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HYPOTHESIS
The hypothesis taken by the researcher is that Online Dispute Resolution is a far more
effective mechanism for resolving online disputes than traditional Alternate Dispute
Resolution Methods or litigation
RESEARCH METHODOLOGY
The various books, various articles, websites, Law journals, Acts, are referred for this topic.
The sources from which the material for this research collected are primary & secondary. The
methodology used in the research has been Doctrinal. No non-doctrinal method has been used
by the researcher in this project work.
SOURCES OF DATA
Primary Sources: -
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automated
negotiation,
early
neutral
evaluation
and
assessment,
Many authors have suggested that the spectrum of dispute resolution mechanisms will soon encompass a full
range of virtual options made possible by the current revolution in information technology see for instance:
Thomas J. Stipanowich, Contract and Conflict Management (2001) Wis. L. Rev. 831.
2
Julia Hrnle, Online Dispute Resolution The Emperors New Clothes? Benefits and Pitfalls of Online
Dispute
Resolution
and
its
Application
to
Commercial
Arbitration,
online:
<http://www.bileta.ac.uk/02papers/Hrnle.html> [Hrnle].
3
Leon E. Trakman, From the Medieval Law Merchant to E-Merchant Law (2003) 53 U. Toronto L.J. 265 at
284.
4
The main forms of alternative dispute resolution (ADR) are arbitration, mediation and negotiation, processes
that are effective in settling disputes out of court and in a manner that is less formal than litigation in court.
Some authors exclude arbitration from ADR though, emphasizing amicable (conciliatory) nature of ADR, as
opposed to adjudicative procedures, such as litigation or arbitration.
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Hrnle wrote that it is logical to use the same medium for the resolution of disputes arisen in online settings
Hrnle, supra note 2
6
ODR is particularly convenient and efficient where the parties are located at a distance, as distance
communication obviates the need for travelling. Part II explains the advantages of ODR in more detail.
7
Katsh and Rifkin, supra note at 19.
8
Hrnle pointed out that the introduction of high technology increases these advantages of ADR over litigation
Hrnle, supra note 2.
9
Rule, supra note at 13.
10
Schiavetta, supra note
Page 6
11
Anne-Marie G. Hammond, The Effectiveness of Online Dispute Resolution, thesis completed for Royal
Roads University MA (Conflict Analysis and Management), available from author hammond00@earthlink.net
or in the National Library of Canada.
12
United Nations Conference on Trade and Development, E-Commerce And Development Report 2003
(Internet edition prepared by the UNCTAD secretariat): Chapter 7: Online dispute resolution: E-commerce and
beyond, online: <http://www.unctad.org> [UNCTAD].
13
Hrnle, supra note 2.
14
Schiavetta, supra note.
15
With automated negotiation the disputants use a software programme to settle their monetary dispute. Firstly
they enter settlement figures and once the amounts come within certain proximity of each other, say twenty per
cent, the claim is settled midpoint.
16
The disputants are provided with a web platform and ICT tools for the purpose of facilitating a resolution.
17
Hrnle, supra note 2. The relation between two fields, which ODR has grown out of, i.e. online (ICT)
technology and alternative dispute resolution movement, is far more complex than it could appear prima facie.
ADR and ICT technology certainly share some common themes: they involve processes of information
exchange and communication, and they both are attributed with resistance to government. See: Thomas Schultz,
An Essay on the Role of Government for ODR, (2003) August ADROnline Monthly.
18
Joseph W. Goodman, The Pros and Cons of Online Dispute Resolution: An Assessment of CyberMediation (2003) Duke L. & Tech. Rev. 4 [Goodman].
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Rule, supra note at 21, Katsh & Rifkin, supra note, UNCTAD, supra note 12.
For example, blocking or unsubscribing flamers on mailing lists Rule supra note at 21.
21
Jay P. Kesan and Rajiv C. Shah, Fool us once shame on you fool us twice shame on us: What we can learn
from the privatizations of the Internet backbone network and the domain name system (2001) Washington
University Law Quarterly 79, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=260834>.
22
The term flaming refers to the process of sending repeated nasty messages to individuals or about
individuals on the Internet see: Joshi Pradyna, Flamers Make for Unease on Net, Milwaukee J. Sentinel,
Apr. 15, 1996, at 9.
23
Netiquette means common courtesy online and the informal rules of the road of cyberspace see:
Netiquette Home Page, online: <http://www.albion.com/netiquette/>.
24
UNCTAD, supra note 12.
25
ibid.
26
R. Everett-Church, The spam that started it all, Wired News, April 13, 1999, online:
<www.wired.com/news/politics/0,1283,19098,00.html>.
27
Rule, supra note at 21.
28
UNCTAD, supra note 12.
20
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29
ibid.
See Center for Information Technology and Dispute Resolution, Online Ombuds Narrative I: The Web Site
Developer and the Newspaper, online: <www.ombuds.org/narrative1.html>.
31
Rule, supra note at 21.
32
UNCTAD, supra note 12.
30
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33
E. Casey Lide, ADR and Cyberspace: The Role of Alternative Dispute Resolution in Online Commerce,
Intellectual Property and Defamation (1996) 12 Ohio St. J. on Disp. Resol. 193 at 193.
34
Rule, supra note at 299.
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40
Page 12
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55
ibid.
Thomas Schultz, Does Online Dispute Resolution Need Governmental Intervention? The Case for
Architectures of Control and Trust (2004) 6 N.C. J.L. & Tech. 71 at 74 [Schulz, Does Online].
57
See, for example, Joel B. Eisen, Are We Ready for Mediation in Cyberspace? (1998) BYU L. Rev. 1305 at
1308 [Eisen] (who noted that electronic communication is no substitute for the ability of face-to-face
conversations to foster important process values of mediation.)
58
Alejandro E. Almaguer and Roland W. Baggott, III., Shaping New Legal Frontiers: Dispute Resolution for
the Internet (1998) 13 Ohio State Journal on Dispute Resolution 711 at 712 [Almaguer and Baggott].
59
David R. Johnson and David Post, Law and Borders The Rise of Law in Cyberspace (1996) 48 Stan. L.
Rev. 1367 at 1372-1373.
60
Rule, supra note at 47.
56
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61
ibid. According to Rule, most people do not interact at the same time over the Internet. Many communication
technologies used online were actually designed as asynchronous to allow people to log on as they like
throughout the day.
62
Bordone, supra note 43 at 180-181.
63
ibid. at 180-181.
64
ibid. at 179.
65
ibid.
66
Katsh, Bringing, supra note 53 at 284.
67
ibid. at 290-291.
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68
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ODR IN INDIA
With the aforesaid legislations in place, the ground is now set for ODR to take a
footing because we have both an ADR-friendly civil procedure and the technology and the
statutory recognition for the use thereof. What we now require is first, that more and more
courts make earnest attempts at making the optimum use of the provisions of Section 89 of
the Code, and second, that there be more and more trained dispute resolution service
providers (DRSPs), individuals as well as institutions, who can effectively deal with the
disputes referred to them by the courts for resolution. Whenever a foray is made into any new
territory, uncharted routes need to be taken. So is the case with ODR, as the implementation
of technology as the fourth party69 in dispute resolution is a novel scenario for India. It is
hence inevitable that in the course of implementing ODR systems, questions will be raised
regarding various aspects thereof and the argument against it is likely to be on the lines of
there is no precedent to that. Undoubtedly, as with everything else in life, issues will arise
from time to time on several aspects of ODR. However, the basic issue of legal sanction for
the use of electronic media has already been settled by the 2000 Act. The Supreme Court too
has shown its approval of the use of technology in dispute resolution. In a recent case70 it held
that video-conferencing could be resorted to for the purpose of taking evidence of a witness.
In that case, one party was seeking direction of the court to take evidence of a witness
residing in the United States of America. Though a lower court had ordered such evidence to
be taken with the help of video-conferencing, the concerned High Court struck down that
order on the grounds that the law required the evidence to be taken in the presence of the
accused. The Appeal Bench of the High Court upheld the said latter order. The Supreme
Court struck down the High Court order by stating that recording of evidence satisfies the
object of Section 273 of the Code of Civil Procedure that evidence be recorded in the
presence of the accused. In explaining the benefits of video-conferencing, the Court observed
that In fact the Accused may be able to see the witness better than he may have been able to
if he was sitting in the dock in a crowded Court room. They can observe his or her
demeanour. In fact the facility to play back would enable better observation of demeanour.
They can hear and rehear the deposition of the witness. Addressing the various submissions
made before it, the 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
69
70
See Ethan Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (2001).
State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601
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71
72
Grid Corpn. Of Orissa Ltd. V. AES Corpn. 2002 A.I.R. (S.C.) 3435
Sil Import, USA v. Exim Aides Exporters, Bangalore (1999) 4 SCC 567
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Economically viable: Cost is one of the most crucial factors in dispute resolution, as
disputants like to reach an optimal decision at the lowest possible price. ODR best suits
the financial demands of all parties to a dispute, as most of the document are exchanged
via email and the proceedings take place online as opposed to exchange of documents by
post. The costs related to travel and accommodation, venue for conducting the
proceedings is also eliminated. Therefore, carrying out ODR is not only easier and faster,
but it is also significantly cheaper.
Speedy resolution: ODR is a speedy process. Where, in ADR it may take several months
to resolve a dispute, ODR promises settlement of disputes within a few weeks. Further,
the borderless nature of the internet diminishes the communication problems faced by
parties and their counsels who may be located in different time zones. Moreover, the
internet enables parties to easily obtain data and other information about their cases in
real time. In addition to easy accessibility, e-mail simplifies the task of scheduling ODR
proceedings and avoids any phone or fax-tags in the process. The internet is also a
superior and swifter form of communication, as it facilitates the sending and storing of
documents of multiple parties simultaneously, thus saving both time and money.
Neutral forum: The internet offers a neutral forum for adjudication and the home
advantage one of the parties hitherto enjoyed. Facilitates record keeping: ODR facilitates
the process of maintaining the record of the correspondences, pleadings, statements, and
other written, oral or visual communications, by relying solely on digital records. This inturn saves time and money of the parties.
DRAWBACKS: The following drawbacks prevail in the ODR process which hampers its
growth as an efficient mechanism for resolving disputes:
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Limited range of disputes: Like ADR, ODR is also best suited to resolve only certain
types of disputes, like, e-commerce and domain name disputes. The ODR mechanism
may not be suitable for resolving every kind of online dispute, for example, negotiation
and mediation may be more suitable in resolving issues such as the damages that may be
payable for breach of contract. Further, tortious disputes, such as defamation and trespass,
may require discovery, interrogatories, recording the testimony of a witnesses and the
crossexamination, which may not be convenient to process over the internet.
Inadequate authenticity: Closely related to the issue of security is the issue of authentic
identification of the user. In an ADR process, one party can be certain that the other party
it is dealing with is the party actually involved in the dispute. However, in cyberspace, it
is not easy to verify the authenticity of messages received and it is relatively easy for a
third party to impersonate or misrepresent one of the parties in the dispute, causing
confusion, thereby defeating the very purpose of adopting ODR.
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Difficulty in enforcement of online awards: Like ADRs, in the case of online arbitrations,
once the decision has been rendered, the same has to be enforced in the appropriate court.
In several jurisdictions, including India, the orders in execution are subject to appeals and
this serves to protract the process of execution. Going by this principle, unless the parties
are assured of the enforcement and implementation of the decisions, disputants may not
have much faith in online proceedings. Further, enforceability of foreign decisions
pronounced after completion of ODR proceedings is also an issue which must be
considered while agreeing to an ODR clause.
Challenging an award: Since ODR proceedings are conducted online, another issue
requiring clarity is the intervention of a court during or after the completion of the
proceedings and/or pronouncement of the decision. This will again raise the question of:
(a) the enforcement of the decision of the court in the country where the opposite party
operates/resides; and (b) appeals against the decision of the court and enforcement of the
said decision.
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CONCLUSION
Online dispute resolution has its sceptics and its enthusiasts. The sceptics say given
that ODR has not revolutionized dispute resolution yet, it is nothing more than a passing fad.
The enthusiasts see an opportunity to develop new resources to resolve conflicts more
effectively than today and argue that the Internet and ODR are still in a process of institution
building even if it takes longer than originally assumed time will come to develop a
global ODR system.
This project contends that the lack of a spectacular success of online dispute
resolution projects stems from significant flaws of their current regulatory framework. There
is no comprehensive legal regime governing dispute resolution on the Internet, and as a result
online dispute resolution suffers from the lack of legal certainty and public confidence. The
absence of ODR law is exacerbated by the weaknesses of the other modalities of regulation:
market, norms and technology. Arguably, a solid legal framework is needed to allow for the
proper growth of online dispute resolution with its norms, market and technology.
Over the past decade, Internet law in India and many other countries has evolved
significantly with the introduction of new privacy, e-commerce, and copyright legislation.
One constant, however, has been governmental support for a hands-off, self-regulatory policy
approach for online dispute resolution. Given the unsatisfactory effects of this approach, it is
time to re-examine it. While it remains to be seen which trend in ODR regulation will prevail,
it must be kept in mind that the development of the Internet has changed the dynamics of the
regulatory environment. The reasonable policy-making must rely on careful consideration of
all the modalities of regulation. The best, and in fact the only presently effective solution, is
co-regulation, a combination of both private and national and international mechanisms,
working in a coordinated effort to provide the optimal regulatory framework of online dispute
resolution.
Suggestions: In the absence of an enforceable international regulatory regime, the
following suggestions are proffered to establish ODRs as an effective mechanism of dispute
resolution: Creation of national and international body: By an international treaty of the
community of nations, an international ODR body needs to be created which would establish
its own substantive and procedural law. Every member country should have a national body
conducting
ODRs,
providing
the
infrastructural
facilities
and
the
panel
of
arbitrators/mediators, based upon the guidelines set out in the treaty to which the country is
a signatory/member. This international body should be independent and should be vested
CHANAKYA NATIONAL LAW UNIVERSITY
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BIBLIOGRAPHY
STATUTE:
BOOKS:
Law of Arbitration and Conciliation, Justice R.S. Bachawats , 5th Edition (Reprint),
2015, Lexis Nexis.
Alternate Dispute Resolution, P.C.Rao and William Sheffield, 2009, Universal Law
Publishing Co.
WEBSITES:
Dispute
Resolution
Services,
online:
<http://www.drs
adr.com/novaforum_revised.php>.
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