The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
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Online Dispute Resolution- With the advancement of e-commerce platforms and with the Covid-19 Pandemic further acting as a catalyst for its expansion1 , the information, and technology sector is playing an imperative role globally in
keeping people connected. The technological advancements along with the need of following social distancing norms have given rise to carrying out usual business with a minimal physical presence.
With everything transitioning towards relying on the digital sector, including education and even the Indian economy2
for that matter, businesses are also effectively keeping up with the work from the home trend. Even the legal fraternity has gone digital and is hearing cases through the means of video conferencing. 25 Lakh cases were heard virtually by courts due to the Covid-19 Pandemic.3 However, the number of cases filed exceeded the capacity of cases that could be heard by courts. It’s no secret that the judicial systems are stumbling beneath a heavy burden of numerous suits filed every year in courts.
As of December 2020, there are 25.55 million cases pending before the District Courts and 4.7 million cases before the High Court as per the e-courts website.4 Furthermore, the Covid-19 Pandemic has forced an inefficient functioning of
all the measures of dispute resolution, thereby aggravating the existing problems. The road forward lies in the transforming the dispute resolution system to adapt to the ever changing demands of justice through technology. Online Dispute Resolution (“ODR” ) or
e-ADR is at the forefront of this transformation and alleviating the burden of the courts.
According to Hon’ble Arthur Monty M. Ahalt, an American jurist, “ODR is a branch of dispute resolution which uses
technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or combination of all three. In this respect it is often seen as being the online equivalent of ADR”[1]Essentially, ODR is a combination of Alternative Dispute Resolution (“ADR” ) mechanisms such as mediation, negotiation, conciliation and arbitration on online platforms with the assistance of digital means to resolve conflicts and disputes amicably.
It is voluntary and informal in nature. Parties can opt for ODR and attempt to resolve disputes through the limbs of ADR instead of directly resorting to litigation as a forum of conflict redressal. It is economical and time efficient in the sense that parties can resolve disputes from the comfort of their homes through video conferencing applications at
minimal prices. It also obviates the need of travelling, enabling dispute resolution across countries and further accelerates the process while making it flexible in nature.
As opposed to litigation where the judgement is pronounced by the judge in more of a win-loss format, often even consuming several years, ODR expeditiously assists parties in deciding their own terms of conclusion and coming to a mutual consensus. It is entirely confidential and also has a positive environmental impact by saving numerous sheets of paper and trees. About 11 billion sheets of paper, which translates to 1.3 million trees and 109 billion litres of water,
is consumed by Indian courts every year.[2] A transition to digital platforms for dispute resolution would not only make the justice system eco-friendly but also alleviate the burden of the courts.
Despite the various provisions in law such as the enactment of the Information Technology Act, 2000, the Arbitration and Conciliation Act, 1996 in consonance with the UNCITRAL Model and the amendment in the Code of Civil Procedure, 1908 that led to the introduction of Section 89 in the Act providing for ADR mechanisms, ADR is yet in its primitive stage in India. However, due to the Covid-19 Pandemic and countries largely relying on the digital sector for
functioning smoothly, ODR is increasingly acquiring significance. Technology and alternate methods must be thoroughly utilised to administer justice given the escalating pendency of cases.
In the case of M/S. Meters and Instruments Private Limited & Anr v. Kanchan Mehta7, the Supreme Court observed that,
“Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded “online” without
physical presence of the parties by simplifying procedures where seriously dispute questions are not require to be adjudicate.”8
Negligible matters being filed for ADR is the corollary of the Opt-in model followed by India, which essentially makes that the procedure of ADR voluntary in nature. The Opt-out model by contrast compels parties to undergo at least one
session of mediation before filing a case before the courts and the parties can choose to opt out of it later. On the potential and possibilities of ODR in India, Justice Indu Malhotra opined,
“A hybrid of the two may be more successful for India, because the opt-in model may defeat the purpose of
mediation. It should be made mandatory, and should cover about three sessions, otherwise the parties may treat it as a mere formality, and opt-out after the first session is over. A hybrid of the opt-in opt-out model may work better for India.”9
Compiled By: Satwik Mishra (Young Professional. “Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business.” NITI Aayog, niti.gov.in/index.php/unlocking-online-dispute-resolution-enhance-ease-doing-business.
Once the hybrid opt-in opt-out is implemented, it is imperative to identify cases that can be resolved through pre-litigation ODR. Bulk cases such as cheque bouncing, insurance claims, cases arising out of Motor Vehicles Act can be resolved through ODR to minimise the backlog of cases, while gradually transitioning towards commercial disputes, disputes arising out of Insolvency and Bankruptcy Code, property disputes, among others. ODR can prove to be especially handy in the near future with financial and commercial disputes rising. ODR start-ups must be utilise for the resolution of such disputes and subsequently incentives must be provide to promote ODR
as a pre-litigation dispute resolution platform so only those cases that require judicial resolution reach the courts after being sift.
Industries should institutionalise dispute resolution processes and implement ODR mechanisms to resolve disputes efficiently without having to resort to litigation, for instance, ICICI Bank in India is implementing methods to internalise ODR.[3] The issue is that ADR/ODR is not see as a medium for justice to be administer but a service to be avail. Along with a change in mindset, a digital infrastructure needs to be built in India to facilitate the ODR culture along
with necessary statutory changes. The present ODR infrastructure in India is beset with several challenges which need to be appropriately dealt with to successfully implement ODR in India.
Critics cite several drawbacks of ODR, some being lack of a digital infrastructure, lack of a well organise legal framework, inadequate safeguards to ensure confidentiality of the proceedings, lack of trust, cultural and linguistic
barriers and the lack of admissibility being the key challenge in successfully bringing about an ODR culture in India.
1. Dealing with consumers who are not well verse with the digital ecosystem along with the inherent inadequacy of a robust digital infrastructure that provides for an efficient ODR proceeding.
2. Lack of concrete and a well organise legal framework that mandates parties to opt for ODR before opting for other dispute resolution forums results in minimal cases being hear through the methods of ADR.
3. Since the ODR proceeding takes place digitally, the absence of human interaction gives rise to a feeling of uncertainty and lack of trust in the proceedings.
4. An essential characteristic of ADR is the confidentiality of the proceeding. ODR raises several concerns on the secrecy of the proceedings, confidentiality and breach of data security. Emails and proceedings via video conferencing applications can easily be leaked.
5. The pivotal challenge being the lack of admissibility of arbitral agreements. It has to ensure enforceability of awards to gain legitimacy and trust of the parties in ODR as a valid dispute resolution forum which is an equivalent of litigation.
With the advent of technology along with the Covid-19 Pandemic accelerating the reliance on digital platforms, a cultural shift transitioning towards an online world is apparent, particularly with the millennials. ODR is the solution to
what the future holds in terms of administration of justice expeditiously and efficiently while reducing the pendency of
cases by preventing matters that do not require judicial resolution from reaching courts. Given the pendency of cases,
it is imperative to look at alternative methods to contain and resolve disputes, since justice delay is tantamount to justice denied.
Although the ODR infrastructure in India is beset with several challenges, the way forward lies in opting for a hybrid model that makes at least three sessions of ODR mandatory while combining the best of both, the physical and the
virtual world. Reliable ODR providers and arbitrators must be add to the system along with special institutions that
provide training for a successful ODR mechanism in India. There is a need for a fundamental positive outlook towards
ODR and it should be give the recognition it deserves as a cost efficient and expeditious forum of dispute resolution. Multi-stakeholder exercises must be undertake in a structure and collaborative manner to ensure its far-reaching effects globally. Parties directly opting for litigation in matters that can be resolve through the medium of ODR must be
disincentivized. ODR is an effective solution to alleviate the burden of the courts by utilising technology and facilitating
an economical, efficient, amicable, remote and environment friendly access to justice. After all, access to justice does not only mean having the means to resolve disputes but also ensuring that the means are expeditious, economical
and efficient in nature.
1 “E-Commerce in the Time of COVID-19.” OECD , 7 Oct. 2020, www.oecd.org/coronavirus/policy-responses/e-commerce-in-the-time-of-covid-19-3a2b78e82 /.
Saiya, Jiger, and Jagat Mehta. “BDO World Wide Tax News Issue 55 – India.” BDO Tax News, BDO Global,
17 June 2020, www.bdo.global/en-gb/microsites/tax-newsletters/world-wide-tax-news/issue-55-june-2020/india-taxing-the-dig ital-economy-indian-equalisation-levy-2-3 0.
“25 Lakh Cases Heard Virtually by Courts across Country: Law Minister.” The Hindu, 16 Oct. 2020, www.thehindu.com/news/national/25-lakh-cases-heard-virtually-by-courts-across-country-law-minister/article3
28754454 .ece. “Citizen Centric Service.” Home – ECourt India Services, ecourts.gov.in/ecourts_home/.
[1] “Online Dispute Resolution.” Infogalactic, infogalactic.com/info/Online_dispute_resolution. [1] Shah, Bhaven. “Online Dispute Resolution: A Possible Cure to the Virus Plaguing the Justice Delivery System?” Bar and Bench – Indian Legal News, www.barandbench.com/columns/online-dispute-resolution-a-possible-cure-to-the-virus-plaguing-the-justice-deli
7 M/S. Meters and Instruments Private Limited & Anr v. Kanchan Mehta 2017 TaxPub (CL) 0840 (SC)
89 Para 17, Id.
Compiled By: Satwik Mishra (Young Professional. “Unlocking Online Dispute Resolution to Enhance the Ease of Doing Business.” NITI Aayog, niti.gov.in/index.php/unlocking-online-dispute-resolution-enhance-ease-doing-business.
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