The Magna Carta of 1215 states “To no one will we sell, to no one will we refuse or delay, right or justice”. The fundamental jurisprudence of law abides by the principle of “justice delayed; justice denied”. The primary requirement of any society is to have a speedy justice system, and hence when the courts were found overburdened with pending cases due to various reasons including the cost-effectiveness, several steps were taken to decrease this burden, as the establishment of Tribunals & Commissions. As a future of traditional dispute resolution, ADR- Alternative Dispute Resolution came up. Arbitration, which is the most integral part of ADR, pre- COVID-19 era was treated as the future of Dispute Resolution, but post-COVID-19 now the need of ADR has become a necessity.
Post COVID-19 the future of litigation and ADR is seen from two perspectives- the adjudication process should be made more user friendly and contactless and other ways of providing faster relief to the parties should be adopted, hence one being a technical aspect and another intellectual aspect. E-commerce is seen growing at a fast pace in India, but unfortunately, laws in India are still ambiguous and fail to provide clarity to e-commerce entrepreneurs. This ambiguity has resulted in non-compliance of various provisions by the e-commerce websites, violating the laws in India. A tussle has aroused between the regulators and the website owners and their consumers because most of the consumers are not aware of their digital rights while their transactions with such e-commerce companies. There is a lack of forums and dispute resolutions methods in India that specially deal with disputes related to e-commerce.
It is now a situation of the paramount need to have such dispute resolution mechanisms which can provide help dealing in such e-commerce disputes, not only in India but consumers located across the world. Alternative Dispute Resolution (ADR) is evolving seeing the current situation in terms of new technologies which can be used to solve disputes through electronic mechanisms, of which Online Dispute Resolution (ODR) has been adopted as a method to resolve matters in this digital age.
Countries that lack developed ADR practices still encourage litigation as a dispute resolution system. An out-of-court settlement is looked like an ‘alternative’ system, which shows that litigation and resolving matters physically in courts is a more acceptable norm. Despite the courts showing their eagerness to send disputes to mediation, conciliation, or arbitration, yet the concerns and doubts regarding out-of-court settlement or online resolution were always there. With time, now arbitration has surely made its place as an effective method of resolving matters, and hence online resolution is also popularly being considered.
Online Dispute Resolution is very much a type of Arbitration that is conducted online, and the parties in dispute discuss through e-mails about their choice of law, signing the agreement digitally, determining the geographical location where the server of arbitration is to take place. The term online here just not only refers to the world wide web but any mode of communication which is transmitted via electronic medium especially using the internet. This includes the use of mobile phones, fax or emails, or any other technology like video conferencing to solve the dispute. One of the benefits of Online Arbitration is that the parties are located in distant places are excused from traveling for resolving their dispute and hence this makes the litigation cost-effective. ODR makes dispute resolution more efficient, time preserving, procedure flexibility, and creative solution.
In the absence of a dedicated Legal Framework for Online Dispute Resolution in India, some provisions have been picked from the Cyber Laws, incorporated in the Information Technology Act, 2000 (IT Act, 2000). These selective provisions don’t enable a sound, robust and long-term ODR system, and hence this system despite its several advantages has yet not been able to take its place. Another factor that affects the growth or acceptance of ODR in India is we do not have specialized institutions that are solely dedicated to providing training, education, research, etc regarding ODR. Currently, we have single techno legal e-court training, consultancy, and educational centre in India that is managing several crucial aspects of technology, e-court laws, ODR, digital evidencing, training of judges and lawyers for e-courts.
Though there are issues in online dispute resolution as it's not sufficiently regulated, yet in a very short span of time, several matters have been resolved using this method. There is a dire need for having a detailed guideline for the Online Dispute Resolution system which will facilitate in removing uniformities and difficulties faced by lawyers or litigants. We can work towards creating a legal framework that can be matched in order to avoid any difference related to different local laws. The most practical way of creating harmony between the legal framework and online dispute resolution laws is that a harmonized model should be shared with all the countries which can be used to resolve matters without litigation. There should be a separate forum for the disputes that are being resolved using the online arbitration mechanism.