TAMILNADU DR.

AMBEDKAR LAW UNIVERSITY

SCHOOL OF EXCELLENCE IN LAW

PROJECT ON

ONLINE DISPUTE RESOLUTION

R SELVAMUTHAN

BCOM L.L.B HONS 4TH YEAR,’C’ SECTION

REG. NO: HB17119

SUBJECT: ALTERNATIVE DISPUTE RESOLUTION

 INDEX

 INTRODUCTION
 MEANING OF ONLINE DISPUTE RESOLUTION
 ORIGIN AND DEVELOPMENT OF ODR
 USAGE OF ODR IN AN ADVERSERIAL SETTING
 ESSENTIALS FOR AN INSTITUTIONAL ODR
 KINDS OF DISPUTES DEALT IN ODR
 METHODS OF ODR
 ADVANTAGES AND DISADVANTAGES OF ODR
 SCOPE OF USAGE OF ODR
 COMMUNICATION MODES IN ODR
 PROMINENT ODR PLATFORMS USED IN INDIA
 ECONFIDENCE IN THE ODR SYSTEM
 LEGAL CONCERNS
 MAJOR INITIATIVES TAKEN BY THE INDIAN GOVERNMENT IN
PROMOTING ODR
 RECOMMENDATIONS FOR AN EFFECTIVE ODR SYSTEM
 CONCLUSION
 INTRODUCTION
Humans as a whole cannot live in a society without being dependent on another.
Interdependence among the people in a society creates numerous advantages but at the same
time acts adverse as it might results in conflict of opinions among them and result in a
dispute. Disputes are conflict or clash of interests which arise out of legal rights and duties.
With increase in inter connected business transactions, it has been found continually difficult
to be able to raise a dispute with a party, fight it in court halls, and get the final settlement.
There has been an increase in inter-dependency between various business entities which
necessitates continued business relationships for smooth flow of work. A single dispute can
no more be a reason for completely ending commercial relationships with any particular
person. However, in case of a dispute, any approach to the courts causes such severance of
relationship which both parties wish to avoid. This led the parties to look for alternative
processes which are more polished for resolving disputes and found the key to the door in
certain interest-based solutions collectively known as alternative dispute resolution
The use of ADR found favour in furtherance of business interests rather than enforcing legal
rights in a strict way which may tear up an existing relationship among parties. It shows a
movement from the jurisdictional theory to the party autonomy concept. As the concept
gained acceptability at international level, rules were framed to make it more convenient for
the parties to avail the facilities on an international level The 1958 New York Convention on
enforceability of Foreign award, UNCITRAL Model Law, 1985 etc… pushed the concept of
ADR further making it a more positive and realistic approach to dispute settlement.
But all of a sudden things changed. Rapid increase in commercial transaction as a result of
globalization required dispute settlement without the parties actually meeting in a particular
place. The introduction of computers helped in inputting raw data and information which
could then be processed into meaningful reports. Now, the Internet has taken up the vital role
of a free information dissemination tool. It has acted as a communication tool and also a
medium of commerce and trade.
Two important changes have resulted as a consequence of this change. Firstly, there has been
a universal acceptance of the use of computers and the Internet. Increasingly, people are
getting 'online' and more numbers are making use of information technology. Computers
have become a part of daily life. The concept has gained acceptance in a variety of arenas
including, research, entertainment, communication, trade and commerce. There is hardly any
area which has not been touched or effected by computer technology. Secondly and more
importantly is the fact that the commercial world has accepted computer technology not only
for the purpose of collection, assimilation and processing of data and information but rather
made it as a tool for furthering their own business interests.
This has been made possible by the wide usage of the Internet and more and more people
getting 'online'. The phenomenal growth of e-commerce makes it clear that commerce via the
Internet has been accepted at large both by the business world and the consumers. These
changes also signify the possibility of rise in clashes in interests of the parties, that is, rise in
disputes. More the people tend to get online and more the commercial world prefers the
Internet as its medium to reach to the consumers and sell its products and more the consumers
are willing to purchase goods and services on the net, there is a likelihood of certain disputes
which inevitably arises in such commercial transactions from time to time. Therefore, with
the coming and use of information technology, another area of dispute has sprung up which
needs to be looked into and tackled. These kind of disputes have their own variety of legal
hurdles like the issue of jurisdiction or the question of the law applicable to the dispute due to
the cross-boundary nature of the Internet. Due to these issues popping out, the use of online
dispute resolution has become the preferable mode of dealing with these disputes. All though
ODR is a platform which can be benefitted by incorporating it in day to day court
proceedings my scope of usage of the term in this project is mostly restricted to use of ODR
as a means to settle disputes in a non-adversarial setting

MEANING OF ONLINE DISPUTE RESOLUTION

The terminology 'online dispute resolution' (ODR) on the face of it have two meanings.
Firstly, it can be viewed as resolution of online disputes. It would include the solving of by
any means, either online mechanism or offline method including court adjudication disputes
which essentially arises from an online transaction. This would include a dispute like a defect
in a computer software purchased online where the payment was made online through a
credit card and the software was immediately transferred to the consumer using the same
online environment.
Secondly, ODR can be looked into from the perspective of method of solving of a dispute
using technologies available which makes it possible to solve a dispute remotely. This means
that new ways of solving a dispute are developed by making use of the online environment
which can be applied to solve any kind of disputes. ODR in this context would include online
negotiation, online mediation, online arbitration etc… This project is focused on ODR as a
tool for solving of any kind of dispute by using technology available online and not in the
sense of resolution of online disputes only. Therefore, ODR covers a variety of ways in
which a party, by making use of the 'online environment', solves its dispute or clash of
interests.1
Online dispute resolution (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 a combination of all three. Online dispute resolution (“ODR”) is
conceived as a means to achieve some of the most powerful legal ideals of the Western legal
tradition, which include:
(1) Legal Certainty: In taking individual plans, decisions, and choices everyone is
entitled to know what the law is in advance.

1
http://14.139.60.114:8080/jspui/bitstream/123456789/722/17/Online%20Dispute%20Resolution.pdf
 (2) Access to Justice: Everyone involved in a dispute shall be entitled to an easily
accessible redressal mechanism that provides for a timely resolution and effective
remedies at reasonable cost.2
ODR is concerned with the peaceful resolution of disputes between private parties, and,
secondly, with the prevention of such conflicts through the provision of legal certainty.
National legal systems fulfill the former function by offering plaintiffs to litigate disputes
before state courts which exercise mandatory jurisdiction over defendants, and the latter by
making the litigation process public, thus allowing for the proliferation of precedent, as well
as by the enactment of codifications of rules of law.
Regarding the dispute resolution function of private law, there are a variety of alternative
equivalents to litigation available, which are collectively referred to as alternative dispute
resolution (ADR). On the one hand ODR relates to the resolution of disputes that result from
online conduct, i.e. from communications and transactions which come about through the use
of the Internet. Domain name disputes are a prominent example as are disputes related to
ecommerce. On the other hand, ODR relates to the use of online communication technology
in the resolution process, even if the dispute itself has an offline origin. The provision of
alternative dispute resolution (ADR) services on the Internet has become quite popular.
Online dispute resolution (ODR) in India is in its infancy stage and it is gaining prominence
day by day. With the enactment of Information Technology Act, 2000, e-commerce and e
governance have been given a formal and legal recognition.
Another concept to be borne in mind is the ‘online environment'. The word 'online' has been
popularly connected to the Internet that is to say, anything available on the Internet is
available 'online'. However, in the context of ODR, the 'online environment' has a wider
scope in terms of 'a set-up making use of technology and communication facilities'. It would
include use of telephone, fax, or e-mail facilities or any other mode available on the Internet
or any other information and communication technology which can be beneficially used to
solve disputes.3

ORIGIN AND DEVELOPMENT OF ODR

Initially Even though the term ODR was not invented, but need for the concept like ODR
emerged in early 1990„s then in 1992, commercial activity on internet which was banned by
the National Science Foundation in United States was removed. So, people started trading
online and making online payments, there needed an efficient and fair way to resolve the
disputes that would inevitably occur online. The National Centre for Automated Information
Research (NCAIR) sponsored a conference on online dispute resolution in 1996. 4 The
outcome was three experimental projects to handle conflicts originating in cyberspace. In the
beginning stage ODR mainly concentrated on resolving the cyberspace disputes. It was an
extended form of ADR mechanism as Internet was used to allow the third party to interact
2
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596267
3
Supra 1.
4
. <www.odr.info/ncair>.
and provide his expertise to the disputant parties. In 1997, the Centre for Information
Technology and Dispute Resolution was established in the University of Massachusetts. E-
bay, an online auction website was the leader in the ODR field. It was e-bay which
understood the need for ODR for the first time. Therefore, in 1999 e- bay asked the Centre at
the University of Massachusetts to build the first e commerce ODR system This project was a
great success.
Eventually, e-bay decided to bring the system as a part of their company to make it a part of
every e-bay transaction. Square trade, a startup was selected by e-bay as ODR service
provider. Gradually, as per the requirements it kept on improving with its services. It realized
that technology can not only facilitate parties to communicate with each other but it can
become a tool to dispute resolution process by assisting parties in negotiating effectively.5
Later due to the boom in internet dependent businesses, domain name disputes became
prevalent. Hence in 1998 The Internet Corporation for Assigned Names and Numbers
(ICANN) was a body to introduce ODR. ICANN brought out the UDRP online arbitration
process to address these disputes arising due to domain names.6 Another big development in
the field of ODR was from the government side in the European Union. The ODR
Regulation7 (came into force in the European Union (EU). The regulation provided for the
EU Commission to establish a free, interactive website through which parties can utilize
alternative dispute resolution (ADR) in connection with online transactions. However, the
use of ODR requires the consent of the parties to the transaction. Member States in the EU
brought into force the legislation to comply with the ODR regulation, which, for the most
part, took effect from January 2016. The Online Dispute Resolution has been accessible to
consumers and traders as at the 15th day of February 2016.
This online dispute resolution platform is being used primarily during disputes arising out of
trade and commerce. On agreement to adopt ODR methods, consumers or traders are
required to complete an electronic complaint form which is available on the ODR Platform.
The parties are free to choose any ADR entity. ADR entities are bodies or institutions that
comply with the quality requirements established by the ADR Directive of the European
Union commission and which are included in the national lists as ADR entities or institutions.
8

The whole procedure of an ADR entity is online wherein 90 days period is taken to reach an
outcome. The binding nature of the decision of the ADR entity will depend on the form of
ADR chosen (mediation, arbitration, conciliation, etc.). While dealing in buying and selling
across EU, traders and consumers are required to know the existence of ODR Platform. Also,
the European Union has initiated several awareness programmes for the consumers and
traders regarding the existence, use, accessibility etc.… of such online dispute resolution
mechanism

5
https://www.researchgate.net/publication/330181756_E-
BAY_DISPUTE_RESOLUTION_AND_REVOLUTION_AN_INVESTIGATION_ON_A_SUCCESSFUL_ODR_MODEL
6
https://en.wikipedia.org/wiki/Uniform_Domain-Name_Dispute-Resolution_Policy
7
Regulation 524/2013)
8
https://ec.europa.eu/consumers/odr/main/?event=main.home.howitworks
The United Nations Commission on International Trade Law (UNCITRAL) established an
ODR Working Group which prepares periodical reports after research on the relevant subject.
In 2010 the Working Group started to work on legal standards in this field; and in 2011 it
developed its work on draft procedural rules, with a focus on low-value, high-volume cross
border electronic commerce transactions.9
USAGE OF ODR IN AN ADVERSERIAL SETTING
Even though throughout the world usage of ODR is not incorporated in an adversarial setting,
certain jurisdictions have certainly taken up the game to incorporate ODR wherever they can.
The European Commission has produced a regulation for a European Small Claims
Procedure (ESCP) which provides a procedure for settling small claims with the help of
online dispute resolution. The ESCP is predominantly a written procedure that deals with
claims under €2,000 arising in cross-border disputes. The objective of the ESCP is the
creation of a cost-efficient procedure applicable to small value claims in cross-border
disputes. The Regulation allows the use of new technologies in transferring information and
evidence between the courts of the different member states. But it will be the EC Member
States who will decide, through their own regulations, which specific means of
communication are acceptable in their courts.
But since the ESCP is a regulation and not a directive, it is argued that it has left too many
aspects to the discretion of member states, it has created a vagueness for mutual and
collective use of the regulation by all the member states. 10
At present, India has 33.47 million cases pending in district courts, 4.46 million in High
Courts; additionally, there is a 21.4% vacancy in district courts and 35.6% in High Courts.11
So, India requires an online administrative infrastructure for boosting the speed of court
processes. Basic changes such as payment of fees, e filing of evidence etc.… can be done in
the beginning and later can be improved. In 2005, when the action plan for implementation of
an information and communication technology (ICT) in the Indian judiciary was released, the
idea was that, within five years of implementation, the judiciary would have state-of-the-art
ICT infrastructure. The plan, way ahead of its time and talked about video-conferencing
solutions, e-filings, etc. Although the government initially seemed quick and active in
implementing it, and within two years, had announced Phase I of the e-courts project, it has
been 13 years since, and the judiciary doesn’t have the promised ICT infrastructure. 12

ESSENTIALS FOR AN INSTITUTIONAL ONLINE DISPUTE RESOLUTION

While ADR can work in an ad hoc environment, ODR necessarily requires an institutional
backup. . This means there should be an organizational set-up which offers ODR services. It
should have the following features:
9
https://www.uncitral.org/pdf/english/texts/odr/V1700382_English_Technical_Notes_on_ODR.pdf
10
https://www.lawonline.ie/law-guides/business/eu-small-claims-procedure/
11
https://www.hindustantimes.com/india-news/3-7-million-cases-pending-in-courts-for-over-10-years-
data/story-ytI7P0rm5Plwe5r8ubNVyJ.html
12
https://www.barandbench.com/columns/need-for-an-ict-uniformly-enabled-indian-judiciary
(a) A proper administrative infrastructure which would support the ODR services.
(b) An up-to-date and user-friendly computer interface with a strong back-end support to
enable the user to make the best use of the services being offered.
(c) A panel of arbitrators, mediators, etc. who are impartial and independent and enjoy the
confidence of the industry at large which will be required using the services being offered.
It is of utmost importance that any institution providing ODR services must be able to
generate trust and confidence among the users. Generating confidence online has been a
problem every person wanting to create offer services on the internet has been facing. The
primary reason for failure of many e-commerce websites offering various commercial
services has been lack of trust. . The primary concern for any user of such online services is,
apart from the authenticity and reliability of the service provider, possibility of fixing the
responsibility on a single person in case of any deficiency of services. In such situation, not
only the online service institution should be backed by an offline set-up, it should also follow
the disclosure-based approach which further helps in creating e-trust and e-confidence among
the users of the online system. Thus, to fulfill all these requirements the parties may find it
very difficult to set up and undertake an online dispute resolution on adhoc basis as they may
not possess the required infrastructure, difficulty in coordination etc…13

KINDS OF DISPUTES HANDLED IN AN ODR ENVIRONMENT

ODR does not merely imply the use of online medium to solve disputes. It is a catalyst to
help people solve their disputes. The dispute can arise either based on an offline affair or
transaction or contract or online. Use of ODR is not restricted to merely solving of online
disputes only. ODR is apt for solving of both online and offline disputes. The online method
of solving disputes is not dependent upon the kind of disputes or the place where they are
arising. If any dispute has arisen, then the parties can very well contact the ODR institution
through its Web site services, submit its disputes, choose the method for solving their
disputes and proceed further.
For example, if there arises a contractual dispute between two businessmen and they agree to
have an online mediation, they can approach an ODR institution, submit their dispute, have
an online mediator appointed, and proceed with the mediation process online. In case a
settlement is reached at, it can be reduced to writing, signed and ultimately, can be enforced
as a decree of court under the provisions of the Indian Arbitration and Conciliation Act, 1996.
Similarly, if a company offers ODR services for its products or services offered, a consumer
can very well lodge a complaint on the company's Web site and the dispute resolution process
can be initiated.
For example, a classic case of solving complaints is the online services of Supreme Court
Cases (SCC). In case any subscriber fails to receive a particular volume/part/issue of SCC, he
can go to the Website of SCC and fill up the complaint form. SCC, after checking its records
13
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and verification, gets back to the subscriber through email with any further clarification it
requires on the matter and suggesting solution like sending another copy of the missing
volume/part/issue and hence, solving the problem.14 This is a small yet feasible and working
model of ODR where a subscriber instead of approaching the company through letters or
personally can immediately log on to the Web site of the company, lodge his complaint
through a standard online complaint form and through mutual negotiations, the problem is
solved. It is to be noticed that here the dispute is not necessarily due to any online transaction
rather any normal business transaction could lead to a dispute which is solved online through
the company's Web site and use of e-mail services.
Another side of this system of course is the solving of online disputes online. Many times, in
case of a dispute which has arisen due to online transactions, consumers prefer that the
dispute is solved then and there through online services instead of approaching the company
through the process of writing letters, phone, etc. Any reliable ODR institution would be of
great assistance to solve such online disputes. There might be a situation when the customer
finds that there is a deficiency in service like excess amount being charged, etc. In such a
situation, ODR is helpful especially if the company has its own in-house ODR service for
online transactions to enable the customer to quickly have an online talk with the company
representative and resolve the dispute mutually. In-house ODR services, if handled properly,
can be quite effective with a higher customer satisfaction because the company representative
not only understands the intricacies of the transaction but is also authorized to settle the
matter. Another way out is to avail the services of an ODR institution. In case of any
differences, the company gives the customer an option to approach an independent and
impartial ODR institution through which the problem can be solved.
Also, the types of disputes being solved can be divided into Contractual and non-contractual
disputes;
Contractual Disputes;
Disputes between the business and the Internet Service Provider (ISP) or webhosting
services provider, including disagreements over interruptions in service, breach in data
security etc.
Business-to-business (B2B) disputes between the business and its suppliers such as non-
performance of contractual obligations, misrepresentations, and complaints from customers
regarding services provided by suppliers.
Online transactions wherein ODR may be employed to resolve disputes such as: Breach of
Contract of business to consumer, consumer to consumer or business to government in
matters such as unsatisfactory Service, payment Disputes, mismanagement of Goods ordered
and delivered, poor performance of contract, misrepresentations, breach of the privacy policy,
and breach of security of confidential information. It is between the business and its
customers that lay the greatest possible scope for disputes.

14
A Supreme Court Journal with its 'Complaint' services, available at: www.ebcindia.com.
Non contractual Disputes:
These are the common kinds of non-contractual disputes that may arise in an online
enterprise.
Copyright – The Company might be liable for copyright infringement if it uses copyright
material in excess of fair use, and without permission.
Data protection – The Company may be liable for sharing or revealing confidential data on
customers, as breach of Privacy even when the contract doesn’t specifically cover it but is
against law.
Online Defamation – The Company may be subject to defamation suits for defamatory
material posted online. Like feedbacks on websites.
Competition law, Domain Name Disputes – Business may be subject to trademark
infringement suits, if it infringes a registered or otherwise legally recognized trademark. If
the company has registered a domain name which corresponds to a registered or common law
trademark, it may be subject to a complaint under ICANN„s Uniform Domain Name Dispute
Resolution Policy (UDRP)15

ADVANTAGES OF ODR

 Flexible: ODR is a, flexible tool of dispute resolution which is not governed by strict
rules of procedure and evidence. This allows the parties to design or participate in a process
which can be molded to suit their needs and encourages a mutual and peaceful approach
rather than an adversarial approach.

 Reduced litigation costs: The costs of the process or compensation given to the
neutral evaluator are generally borne equally by all parties, providing all parties with an equal
stake in the outcome and an equal sense of ownership. Also, expensive court fees and
increase in expenditure due to lengthy processes in traditional form of settling disputes in the
form of adversarial proceedings can also be avoided.

 More efficient pre-hearing preparation ODR’s functionality improves the

efficiencies in pre-hearing and hearing materials. An online document management system
makes it much easier to manage documents, including when searching for, sharing materials
between the client, counsel, experts and witnesses of fact. The lines in a hearing material can
be hyperlinked to the document evidencing and backing up such statement. These help in
improved efficiency in the way the dispute resolution takes place.
Also while the hearing takes place for example in majority of the ODR platforms during
cross-examination, each document referred to by counsel appears on the screen in front of the
witness almost instantaneously, enabling the cross-examiner to launch a series of questions,
free from  the distraction, disruption and delay associated with the witness (and tribunal and

15
https://sg.inflibnet.ac.in/bitstream/10603/200686/9/09_chapter6.pdf
 opposing counsel) locating the document referred to in a hard copy bundle in traditional form
of arbitration or adversarial processes.

 High volume: ODR is appropriate option for high-volume transactions as it often allows
for a timely, cost-efficient and efficient resolution to problems where the amounts in dispute
may not be sufficiently high to justify the cost of an adversarial proceeding or even a physical
mode of conducting an ADR.

 Geographical advantage: ODR also benefits the parties where the geographical location
of the parties to the dispute act as a hindrance especially when the parties are located in two
different countries. ODR solves this problem by giving the opportunity for the parties to
settle their dispute by merely sitting in front of their computers

 ODR also is appropriate where there are sensitivities between the parties that may be
aggravated by being in the same room. For example; matrimonial disputes

 ODR may allow for the participation of parties who could not otherwise attend an in-
person meeting due to a severe disability.

 Confidential: ODR is confidential (unless agreed otherwise by the parties). The process
is appropriate when confidentiality is considered important or necessary to the parties. The
parties utilizing ODR mechanisms usually do so on the basis that they can discuss matters
freely in the expectation that they will be disclosed, neither publicly, nor to a court.
DISADVANTAGES OF ONLINE DISPUTE RESOLUTION

 All parties would be required to have adequate technology to participate in an ODR

Process. Parties without adequate technology may be at a disadvantage or unable to fully
participate.

 ODR is a less personal form of dispute resolution as the parties are not in the same
room, and often all of the discussions are in writing in the form of mails, or video
conferences etc.… Here the human touch of dealing with a dispute in person isn’t available

 Also, ODR even though ODR platforms or other technologies used in ODR processes
boast themselves regarding the encryption mechanisms put in place for transmitting
information between one party to another, there’s always a possibility of data theft and
hacking and various other forms of illegal cybercrimes. For example, one such technique to
gain unauthorized access is spoofing, the unauthorized person assuming the identity of an
existing authorized user to access confidential information.

 Mutual understanding and conciliation of various formalities to be followed by the

parties cannot be completely monitored. Hence it might lead to confidentiality issues. For
example a party may print out and distribute e-mail communications easily and without the
knowledge of the other party. This may hinder the development of open and honest
exchanges
 SCOPE OF USAGE OF ODR
A strict ODR environment visions an online-technology-only situation. The initiation of the
ODR process, contacting the other party, , appointment of a mediator/ conciliator/arbitrator,
the actual ODR process, reaching an agreement or giving of an award, and finally
enforcement of such agreement/award through the courts in accordance with the statutory
process. However, it is difficult to bring the whole process under a single online set-up for the
simple reason that different players like the complainant, opponent, arbitrator, mediator
etc…, judge and different institutions like arbitral institution, company, consumer, court are
involved. The extent to which technology is used in ODR is determined by the level of
technology which has been incorporated in each and every institution with which the ODR
process is concerned.
In developing and underdeveloped countries, the beginning has always to be made by merely
introduction of information technology in the day to day working of an institution. It involves
a control over the dispute process through information technology. Only then would the step
of offering online environment would arise. As each institution, one by one, gets used to
information technology and goes online, it can be linked to a single ODR process. Until all
the institutions involved in the dispute resolution process are linked with each other to the
online environment, one cannot imagine an online dispute resolution process. Therefore,
ODR does not imply complete use of information technology and online working and
foregoing of all offline processes Rather, ODR has to be seen as a hybrid process of both
offline and online methods.
What is visioned is more and more use of online environment so that increasingly we move
towards a complete online process. At present, if one requires an arbitration for a commercial
matter, one can opt for ad hoc arbitration or institutional arbitration. The process of resolving
dispute in either kind of arbitration would essentially be the same. The other side would be
contacted. An arbitrator, as per the agreement of the parties, would be appointed. The
arbitration proceedings will be carried on. Finally, when the arguments, etc. are concluded,
the award is given which then has to be enforced through the courts as if it were a decree of
the court.
If we were now to introduce online environment to this arbitral process, the first requirement
would be to ascertain the level of technology use in these institutions, namely the arbitral
institution and the courts. It might be that the arbitral institution is technologically in a better
position than the courts to adopt the online environment. In such a situation, one can, with
appropriate software and hardware investment, create an online set-up. Again, for its proper
functioning, not only the parties to the dispute but also the arbitrator must have a minimum
knowledge of use of information technology.
For example, it may be that the online services being offered by the institution is limited to
enabling the parties to submit its disputes online, make its documentary evidence available
online, or making of fee and expense payments. However, the actual arguments, giving of the
award, etc. happens in offline environment. Since it may not be technologically viable for the
courts to accept the awards online for the purpose of enforcement, the final award might have
to be on paper and signed by arbitrator, which can then be enforced through the court
mechanism. The idea is to demonstrate that the online process would generally be introduced
in stages and cannot at once replace the whole face to face dispute resolution environment

COMMUNICATION MODES USED IN ODR

One of the advantages of online environment over physical environment is the availability of
various communication modes to a user. It becomes important to select the appropriate mode
to conduct the ODR process since different kinds of disputes require different types of
modes.
1. E-mail:
It is one of the most common and easiest ways of communicating today. It permits the sender
to not only send messages but also attachments like, text files, graphic files, audio/video files,
etc. The sender of the e-mail can send it to one or more persons using the "To:" or "CC:"
option or even send a copy to a third person without any knowledge of the other recipients of
the e-mail using the "BCC:" option. E-mail is useful for filing of pleadings, documentary
evidence, communication between the ODR institution and parties on administrative issues,
etc. This mode is also helpful when, in case of mediation or negotiation, the parties are
unable to instantly take decision. For example, in case of an online mediation of a
matrimonial dispute, a situation might arise where, due to family and social norms, one party,
maybe the wife, needs to consult her parents before she can answer back. In such a situation,
interacting through e-mail gives her sufficient time to think over the matter and also consult
the elders of the family before giving a reply.
2. Discussion boards:
These platforms are used when there are many persons wanting to give their views on certain
issue or issues. Discussion boards are a collection of messages from different people at the
same place so that one can, at a single glance, view the entire discussion. Best example would
be google classroom, slack etc.… However, this kind of communication too poses a problem
specially if there are multiple issues with multiple parties involved. Each party will then want
to give its views on each issue as per its convenience. Then rather than a simple discussion
board, we switch over to the thread-discussion board.
For example slack is beneficial for threaded discussion where a party can thread their reply
to a issue In this system, if A gives his comment on Issue I and then B gives his comment on
Issue II and then C on Issue III, if D wants to give its reply to the comment given by A on
Issue I, D's reply would be threaded with the A's comment and would be seen under A's
comment itself rather than at the end of the discussion. Therefore, on each issue, all
comments and replies come under one heading to give a clear picture as what the parties
think about that particular issue. This kind of communication mode would be useful in a
commercial dispute where various issues are involved.16

16
Supra 1.
 3. Instant messaging:
As the name suggests, it instantly sends the message to the recipient. In this mode, the
persons who are sending messages are all online and connected to each other through a
common instant messaging system like WhatsApp They can open a common window on
which they can have a discussion and can even open up separate individual windows to talk
to one or more persons privately. Messages are sent and received immediately. This mode is
suited to ODR systems like online mediation where the mediator and both the parties can
have a joint discussion. However, if the mediator wishes, he can also have a private session
or with a single party, of course, after informing and taking permission from the other party.
This mode is also beneficial in in-house ODR services of companies where the consumer
and the company's representatives can instantly communicate with each other and problems
can be solved. For example, in the SCC case discussed above, this can be a feasible solution.
However, again, not only should the company representative have adequate data available at
hand to solve the dispute but should also be authorized to do so.
4. Audio conferencing
The purpose of audio conferencing is to enable the users communicate real-time. As one
speaks, the other person can hear. With the help of advanced telephonic technology available,
we can have audio conferencing with more than two persons talking and listening at the same
time, or a group of individuals on either side having a discussion. It is useful for almost all
forms of online dispute resolutions. The mediator or the arbitrator can discuss the matters
over phone with the parties or the parties themselves can talk with each other during the
process of negotiation.
5. Video conferencing
Video conferencing is the best mode for ODR. Combining the advantages of audio and visual
facilities, it is only one which goes somewhere near the face to face environment. This mode
enables the players of the system to see and listen the others at the same time and also able to
respond. This mode is particularly useful in case of oral arguments as the video conferencing
makes it feel as if the parties are presenting their arguments face to face. The problem,
however, at present is of lack of required bandwidth to be able to have a smooth and
uninterrupted video conferencing especially in underdeveloped and developing countries

KINDS OF ODR MECHANISMS

1. Blind bidding or blind negotiation:
'Blind bidding' or 'blind negotiation' is one of the most innovative dispute resolution services
currently available online. The common characteristic of these processes is that the parties
submit monetary offers and demands which are not disclosed to the opposing party but are
compared by computer in 'rounds'. If the offer and demand match, fall within a defined range
(e.g., within 5% of each other) or overlap, the case is settled for the average of the offer and
demand, the matching amount, or the demand in the event of an overlap. 17 If the claim is
settled, the participants are immediately notified while online or by e-mail. For example,
cybersettle.com offers such service18
2. Online negotiation:
An ODR service provider which is mostly an institution providing alternative dispute
resolution services, to help the parties reach an amicable settlement, creates an online
environment. This environment is created by making use of technology which guides the
dispute resolution process as and when required.19
For example, a company called Smart Settle aims to accelerate the negotiation process for
any type of cases and allows parties to participate in appropriate combination of face-to-face
meetings, conference calls and online exchanges in order to quickly find a fair and efficient
resolution. The parties are provided with an apt atmosphere to be able to negotiate. The Web
site generates suggestions to help the parties quickly reach a solution. Smart Settle works by
contacting all parties and help them in engaging a single/multiple facilitator. A framework for
agreement is built up.
After this, the parties privately identify their best and worst options to scope a bargaining
range for each issue. Parties then assign private estimates of the relative importance of each
issue. The issues and expectations constitute the parties' optimum level of satisfaction. Next
step is to encourage parties to create initial proposals with optimistic values that allow for
concessions. Parties may offer visible concessions and/or request suggestions from Smart
Settle. Any party may register a confidential acceptance of any suggestion made by Smart
Settle. When both parties accept the same package, a tentative agreement is reached. When
parties are ready to sign, the Framework for Agreement is filled in with the best solution
found.20
3. Online negotiation-cum-mediation
This kind of ODR involves the dual process of negotiation and mediation consecutively. The
parties can initiate the ODR process by opting online negotiation and make an attempt to
negotiate their differences and reach at a settlement. In case they are unable to do it
themselves, a mediator is appointed which conducts an online mediation and helps the parties
reach a settlement.
For example, SquareTrade.com provides individual and business to business buyers and
sellers an online negotiation-cum-mediation environment. The complainant files a case with
Square Trade by completing an online form that helps identify the situation and possible
resolutions. The other party is notified by e-mail and responds to the case. Communication
from both parties is posted on a private Case Page. Then direct negotiation begins. During
direct negotiation, the parties communicate with each other in a confidential, impartial forum.

17
https://www.arbitrationindia.com/pdf/tia_6_1.pdf
18
http://www.cybersettle.com/
19
Supra 16
20
https://www.smartsettle.com/faq
If the case is not resolved, Square Trade assigns a mediator from the Square Trade Network
who helps the parties reach a mutually acceptable settlement.
4. Document/e-mail arbitration
As the name suggests, the whole process of arbitration is carried out through document/e-
mail. Right from filing of arbitration agreement to filing of disputes with documentary
evidence, written submissions, written hearing, and closing statements are all done through e-
mail. Interaction between the arbitrators and the parties are done through e-mail. In case the
arbitrator wants to ask questions or parties want to make a submission or reply to other's
submissions, e-mail is the mode used.
WEBdispute.com used to offer Document/E-Mail Arbitration for disputes resulting from e-
commerce transactions. Participants complete and submit an Agreement to Arbitrate and
Oath of Participation. WEBdispute.com issues a schedule for submitting and answering
disputed issues including statements of the case, documents and affidavits and sets a five-day
e-mail Hearing. When the hearing is opened, each party presents their case and opposition to
the opponent's arguments by e-mail. The arbitrator may pose questions to both sides and, on
the last day of hearing, the parties may submit final arguments by e-mail. The arbitrator then
closes the hearing, considers all evidence, and renders a decision within twenty days which is
sent by postal mail.21
5. Online arbitration through video-conferencing
Online arbitration with the help of video-conferencing is considered the closest to Face to
face physical mode of arbitration. It involves the use of video-conferencing to conduct the
arbitration process.
For example, an Internet conferencing system will allow registered participants to log into an
electronic conference room from anywhere in the world using standard browser software. A
list identifying all parties present appears on each participant's screen, and clicking on a
participant's name opens a window to compose e-mail to that individual. There is also an area
on each participant's screen to type messages to all participants. When sent, these messages
immediately appear on the screen of all parties, identified with the sender's name and time.
Participants on one side of a dispute who are in different locations may also message
privately with each other and/or with the mediator during an online session. Two electronic
conference rooms allow break-out sessions, during which the neutral may communicate with
both rooms but parties in one room may not communicate with parties in the other. For ex a
mediator A will, be able to communicate with parties B and C but the parties won’t be
directly able to interact with each other22
6. Online public opinion
In this kind of ODR, opinion is sought from the general public by posting the information
gathered by the parties online (of course, after obtaining the parties' consent).

21
http://webdispute.com/
22
Supra 1
For example, a platform called ILEVEL used to provide such service where ILEVEL
members can submit complaints against vendors and their desired solutions online. This
information is forwarded to the vendor by ILEVEL, and held confidential until the parties
have had an opportunity to reconcile. Failing a reconciliation, and with the member's
authorization, all information gathered is posted online. The online public can then review the
dispute and express their views and comments in favor of the member or vendor. Based on
which the parties can mutually reconcile their disputes. But ILEVEL is no longer functional 23
7. Peer jury & panel jury
ODR institutions also offer online 'Peer Jury' and 'Panel Jury' processes to help in the
evaluation and resolution of disputes. In Peer Jury online trials, volunteer jurors select the
cases they would like to decide, review the parties' claims, pose questions and ultimately give
their verdicts. The parties receive a summary including the number of votes cast, the median
award and a compilation of juror comments. In Panel Jury trials, the parties choose specific
jurors. Parties can decide whether the verdict of the jury will be binding on them or not.
For ex iCourthouse.com is an Internet courthouse. It is an online courthouse where you can
present your disputes for trial before a jury of your peers. The idea is to agree beforehand to
submit the dispute to ICOURTHOUSE where the jury will give its verdict. One can present
his claim and the other side can present his defense. Then, the dispute is judged by a Peer
Jury that is any person who wishes to act as a juror on the Internet. There can be any number
of jurors. The dispute can also be put forth before a Panel Jury which is selected by the
parties themselves. They are given access to the plaintiffs and defendant's opening statement,
evidence and closing statement. Thereafter, the juror is required to give his verdict. One can
look at the verdict delivered by the other jurors. The, parties can agree whether to count a
majority, two thirds, or what proportion of the verdicts will constitute a decision. The trial
book shows all the verdicts entered so far, juror comments, and the verdict showcasing
majority opinion of the jurors24
8. Chargebacks (as a method for dealing with e-commerce disputes)
One of the main focuses of e-commerce up until recently has been related to secure
payments. Chargebacks is a remedy used to reverse transactions made with credit or debit
cards when a fraudulent use has occurred, or when there is a violation of the contract terms.
This method is very popular among online consumers since this is the main mechanism to
transfer money online. In addition, consumers are not required to give evidence to cancel a
payment. The vendor has the burden of proving that the merchandise or service was given
according to the contract terms. Once this is proved the bank makes effective the payment to
the vendor.
Chargebacks are largely used around the world by banks and the main credit card suppliers
i.e. Visa, MasterCard and American Express. Yet, the coverage of debit and credit cards
varies considerably amongst different countries. Commonly, debit cardholders have fewer
protections than credit card holders, but it also varies depending on the jurisdiction.
23
Ibid.
24
https://www.tandfonline.com/doi/abs/10.1080/13600830500042756
It is then not surprising why credit cards are the major source of payments for consumers in
e-commerce. They provide a remedy that reverses all transactions when a fraudulent use has
occurred, or when there is a violation of the contract terms. However, this method has
limitations; it offers one single remedy (the return of the payment), and not all disputes imply
a breach of contract or fraud.
Similarly, online payment providers, like PayPal.com, retain temporarily the money paid by a
buyer when the latter makes a complaint within 45 days after the payment was made.
PayPal.com holds the money until the dispute is settled, but only in those cases where the
merchandise did not arrive, or the description of the product was significantly different from
the product itself. In these circumstances PayPal.com acts similar to an online
arbitrator. However, in those circumstances where the seller takes away the money from his
account before the buyer makes the claim, PayPal.com will not be responsible for the buyer's
loss. Despite this, PayPal is in a very strong position since in most cases it is able to freeze
the amount of money and resolve the dispute providing an instant and effective enforcement.
Overall, chargebacks intend to balance the inequality of power between consumers and
businesses. It is regarded as a very efficient tool for consumers because the speed,
accessibility and lack of charge for their clients, who would just have to notify their banks or
card issuers to cancel a transaction.25

PROMINENT ODR PLATFORMS USED IN INDIA

In recent times, a shift in the pattern of resolving disputes can be established as more and
more ODR platforms have become operable in our country facilitating particular kinds of
dispute resolution for many national and international companies. These ODR platforms have
made easy the process of dispute resolution by combining the already existing process of
ADR with cutting edge technology, making the process feasible and time convenient
altogether.

 CADRE or Centre for Alternate Dispute Resolution Excellence is a website-based

platform for ODR. First, one party approaches the platform which then contacts the
other party. If both the parties agree then an arbitrator is appointed and time-stamped
intimations are sent through e-mails or WhatsApp. Usually, the parties do not meet
face to face but they make contact electronically via video calls. The decisions that
are legally binding come within 20-25 days of time. 26CADRE has been resolving
tenant and rental contract disputes for Nest Away an online home rental startup
recently.

 SAMA is another ODR platform that facilitates easy access to high-quality ADR
service providers and helps people to resolve disputes online.27 SAMA is being used

25
https://en.wikipedia.org/wiki/Chargeback
26
https://atthecadre.com/
27
https://www.sama.live/about-us.php
 as an ODR platform by ICICI Bank to resolve nearly 10,000 disputes with values
going up as high as INR 20 lakh.28

 CODR or Centre for Online Dispute Resolution 

 AGAMI is another non-profit ODR platform that aspires to create a better system of
law and justice by providing time-efficient and feasible dispute resolution methods.29

 YOUSTICE is an ODR service for handling large volumes of low value consumer
complaints, relating both to goods and services, whether or not the purchases took
place online. 30

 EBAY -A significant 60 million disagreements amongst traders on eBay are resolved

every year using ODR. There are two main processes involved. For disputes over
non-payment by buyers or complaints by buyers that items delivered did not match
the description, the parties are initially encouraged to resolve the matter themselves
by online negotiation. They are assisted in this by clearly structured, practical advice
on how to avoid misunderstandings and reach a resolution.

 (UDRP) & INDRP

The Uniform Domain Name Dispute Resolution Policy (UDRP) created by the Internet

Corporation for Assigned Names and Numbers (ICANN).has developed a transparent global
ODR process that allows trade mark owners to fight efficiently issues arising out of domain
name in the internet world. The UDRP is used to resolve disputes between trade mark owners
and those who have registered a domain name in bad faith for the purpose of reselling it for a
profit, or taking advantage of the reputation of a trademark.
Trademark owners accessing the UDRP must prove to the panel three circumstances:
1. Similarity of the domain name to the trade or service mark;
2. Lack of rights or legitimate interest in the registered domain name;
3. Bad faith in the registration and use of the domain name.
Similar to the UDRP in India INDRP deals with all domain name disputes which have.in as
their generic top-level domain name
But the UDRP has disputes similar to those present in disputes arising in e-commerce
transactions. The main worry is that the evaluation the panel decisions often shows a lack of
unanimous consensus in the interpretation of the UDRP. This may be due to a number of
reasons, such as the lack of an appellative review and panels composed by members from a
multitude of jurisdictions and informed by different legal traditions.

28
https://www.barandbench.com/apprentice-lawyer/online-dispute-resolution-of-banking-disputes-in-the-
wake-of-covid-19
29
https://agami.in/odr/
30
https://www.youstice.com/en/about-us
On the other side, it is undeniable what ICANN with the UDRP has achieved in developing
an effective ODR procedure. The UDRP providers have dealt efficiently with over 30,000
domain name disputes. Their success derives from two aspects: First, the UDRP deals only
with blatant disputes, which are abusive registrations made in bad faith in order to take
advantage of the reputation of existing trademarks. Secondly, it has incorporated a self-
enforcement mechanism, which transfers and cancels domain names without the need for
judicial involvement. This is a positive accomplishment for the development of e-commerce
because it favours consumers' confidence in the Internet by reducing the number of
fraudulent registered domain names.31

 The RBI has announced the introduction of Online Dispute Resolution (ODR)
system for resolving customer disputes and grievances pertaining to digital payments,
using a system-driven and rule-based mechanism with zero or minimal manual
intervention. As a step in this direction, authorized Payment System Operators (PSOs)
– banks and non-banks – and their participants are hereby advised to put in place
system/s for ODR for resolving disputes and grievances of customers. Authorized
PSOs shall be required to implement an ODR system for disputes and grievances
related to failed transactions in their respective payment systems by January 1, 2021.If
the grievance remains unresolved up to one month, the customer may approach the
respective ombudsman.32

The Reserve Bank of India has also put up the Ombudsman Scheme for Digital Transactions,
2019 in place. It is an expeditious and cost-free apex level mechanism for resolution of
complaints regarding digital transactions undertaken by customers of the System Participants.
For redressal of grievance, the complainant must first approach the System Participant
concerned. If the System Participant does not reply within a period of one month after receipt
of the complaint or rejects the complaint, or if the complainant is not satisfied with the reply
given, the complainant can file the complaint with the Ombudsman for Digital Transactions
within whose jurisdiction the branch or office of the System Participant complained against,
is located.33

E CONFIDENCE OF THE ODR SYSTEM

One of the greatest concerns for an ODR institution is whether its services will be accepted at
large by the online public. At the same time, one of the fears of the online user is whether the
online institution is trustworthy. After all, if one is agreeing to arbitrate through an ODR
institution, the very thought that the online arbitrator's decision would be binding on the
person and can be enforced as a decree of the Court, is in itself very scary. The parties would
never physically see the arbitrator and there is always a thought of partiality and bias. It is,
31
https://www.trademarksandbrandsonline.com/article/domain-name-dispute-resolution-an-indian-
perspective
32
https://www.moneycontrol.com/news/business/economy/rbi-to-introduce-online-dispute-resolution-
mechanism-for-digital-payments-5653961.html
33
https://www.livemint.com/mint-lounge/business-of-life/there-s-an-ombudsman-for-digital-transactions-
now-1549468251367.html
therefore, a must that the ODR institution is able to generate e-trust and e-confidence among
the users of the online system.
To aid this process the American Bar Association Task Force on E-Commerce and ADR
proposed Guidelines and Recommended Best Practices by ODR Service Providers to assist
the party to a dispute make an informed and intelligent decision.
1. Transparency and proper means of providing information
All information and disclosures should be accurately and completely stated, should be
presented as clearly and simply in identifiable and accessible formats, and should present the
most important points in an appropriately conspicuous manner. It should be printable and
able to be downloaded electronically.
2. Minimum disclosures
ODR providers should disclose the minimum level of information like contact and
organizational information, terms and conditions and disclaimers for the service, explanation
of services/ADR processes provided, any pre-requisites for use of service like geographical
location or membership, etc.
3. Use of technology and the online environment for dispute resolution
ODR providers should disclose the current availability of technology, like possibility of
dealing with disputants' differences in language and culture, or incorporating audio and video
streaming, or accessibility to persons with disabilities or with low levels of literacy,
preservation of confidentiality and privacy of the parties, accessibility, back-up and
arrangements for alternative emergency access. Further disclosures are required regarding
training of the neutral parties in the system like the arbitrator, mediator, potential
participants/parties, in the use of online systems.
4. Costs and funding
Disclosures as to the preliminary costs for the process and what portion of the cost each party
will bear are necessary. Equally important is to disclose the source of funding in case one of
the parties is not required to pay at all. This is important in Business to consumer transactions
where generally the company funds its own in-house ODR system.
5. Impartiality
This is one of the important disclosures to be made by the ODR service provider to generate
confidence in the user. ODR providers must disclose relationships with other organizations
(like merchant associations), selection process of neutrals (eligibility and qualification of a
neutral), ethical standards of neutrals (ethic rules, if any, by which neutrals are bound).
6. Confidentiality, privacy and information security
ODR institutions should give their Privacy Policies, confidentiality concerning information
about participants provided to the ODR Provider and concerning specific proceedings.
7. Qualifications and responsibilities of neutrals
 This means the minimum qualifications required for inclusion on the ODR Provider's panel
of neutrals, such as education level, lawyer/nonlawyer, prior ADR experience etc… and
whether the ODR provider provides any additional training to the neutrals especially with
regard to use of their online systems. Disclosure of responsibilities of neutrals includes the
source and substance of their disclosure standards regarding conflicts of interest and what are
the steps ODR provider takes in case of their neutrals do not adhere to the ethics code
provided by them.
8. Accountability for ODR providers and neutrals
ODR providers should disclose the steps they take to require neutrals to fulfil their
responsibilities promptly, maintain communication with the parties, and comply with the
stated ethical guidelines. Also, what steps can the participant take to file complaints for
neutrals' failure to comply with the requirements shall be specified
9. Enforcement
ODR institutions should disclose the steps they take to ensure quick and complete
enforcement of the awards rendered and whether they cooperate with law enforcement
officials, so that instances of fraud can be detected and prosecuted.
10. Jurisdiction and choice of law
ODR providers should disclose the jurisdiction, where complaints against the ODR provider
can be brought, and any relevant jurisdictional limitations.34

LEGAL CONCERNS
There might be certain legal concerns regarding implementation of ODR in India. After all,
if, through an ODR institution based at Delhi, an arbitration is conducted while the arbitrator
is in Mumbai and one party is in Chennai and the other in Bangalore, certain legal questions
do arise for consideration. Foremost is the legal sanctity or validity of such system as a
whole. Then arises the question of legal sanctity of proceedings, of e-mails exchanged, and
written submissions sent through e-mail, of award rendered which is to be written and signed
and lastly, the court which will have the jurisdiction to enforce the award. For this purpose,
Indian Arbitration and Conciliation Act, 1996 (Arbitration Act) with the Information and
Technology Act, 2000 (IT Act) helps by making certain such uncertainty
A few issues are considered below to demonstrate the point.
1. Arbitration agreement shall be in writing: Section 7(3) of the Arbitration Act provides that
the arbitration agreement shall be in writing. However, if the parties agree online to refer the
matter to an online arbitration through an ODR service provider, the question arises as to
whether such an online agreement will be valid in law. Presuming that both parties admit that
such an online agreement was made, it will have the sanction of law due to operation of
section 4 of the INFORMATION TECHNOLOGY Act. By reading section 4 of the IT Act
34
Supra 1
 into section 7(3) of the Arbitration Act, such an online agreement will be a valid one in the
eyes of law. The same goes for written submissions, if any, made by the parties online.
Section 4 of the information technology act states that

“Where any law provides that information or any other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied if such information or matter is-
(a) Rendered or made available in an electronic form; and
(b) Accessible so as to be usable for a subsequent reference.”. Hence based on this provision it
is clear that even if the arbitration and conciliation act doesn’t contain an explicit provision
regarding admissibility and enforceability of an electronic form of presentation of data or a
contract or some form of information, it is acceptable as an valid form.

2. Award to be in 'writing' and 'signed'; Section 31(1) of the Arbitration Act requires the
arbitral award to be in writing and signed by the members of the arbitral tribunal. In such
case, validity of an electronic award has to be decided. As far as the condition that the award
must be in ‘writing’ is concerned, that is answered by section 4 of the IT Act which has
already been discussed above with regards to communication between the parties themselves
or with the parties and the arbitrators. Here it relates to the admissibility of awards made by
the arbitral tribunal in an electronic form by virtue of section 4 of the information technology
act

As regards the 'signature' requirement which is covered under the second part of section 31(1)
section 5 of the IT Act provides that digital signature would have the same legal effect as a
paper signature. Section 5 reads as follows.
“Legal recognition of [electronic signatures].—Where any law provides that information or
any other matter shall be authenticated by affixing the signature or any document shall be
signed or bear the signature of any person, then, notwithstanding anything contained in such
law, such requirement shall be deemed to have been satisfied, if such information or matter
is authenticated by means of [electronic signature] affixed in such manner as may be
prescribed by the Central Government.’
Hence the ambiguity regarding the acceptance of electronic awards in the eyes of laws has
been clarified after the enactment of it act

3. Enforceability of the e-award: Another concern relating to the use of ODR is the
enforceability of the online award rendered. Which court should a party approach to enforce
the award? Will it be the court of the place where the arbitration agreement was signed? Or
will it be the court of the place where the arbitrators were sitting? Or will it be the court of the
place where the award was rendered? Or where the ODR institution is physically established?
Or where the parties are established?
The answer lies in the Arbitration Act itself. Section 36 states that the award will be enforced
under the Code of Civil Procedure, 1908 as if it were a decree of the court. As per section
2(e) of the Act, 'Court' means the principal Civil Court of original jurisdiction in a district,
and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction
 to decide the questions forming the subject-matter of the arbitration if the same had been the
subject-matter of a suit. Therefore, the court in which the award will be enforced is dependent
on the subject matter of the arbitration and not on the place where the arbitrator sits or
renders the award or where the parties are established.

4. Section 19 of the Arbitration and Conciliation Act, 1996 which states that tribunal is not
bound by provisions of CRPC and INDIAN EVIDENCE ACT and so may decide upon the
procedure to be followed in conduct of such proceedings thereby making online or live
conduct well within the legal domain and no one can challenge such proceeding merely on
the ground of being an online resolution proceeding.35

MAJOR INITIATIVES TAKEN BY THE INDIAN GOVERNMENT FOR

PROMOTING ODR

1. In 2018, the Indian Parliament passed the ‘Pre-Institution Mediation and Settlement
Rules’ in terms of Section 21A(2) of the Commercial Courts Act, which makes it mandatory
for commercial disputes over INR 3,00,000 rupees to undergo mediation before filing
proceedings in court.

2. The Finance Ministry had introduced the Sabka Vishwas (Legacy Dispute Resolution)
Scheme, 2019, in the budget for 2019-20 with the objective of settling pending disputes of
Service Tax and Central Excise as. Over 133,661 taxpayers had submitted their application
by 31st December 2019 whereby the applicable tax dues of Rs 69,550 crores were settled at
Rs 30,627 crores.

3. In May 2019, a high-level committee constituted by the Reserve Bank of India submitted
a report on 'Deepening of Digital Payments' in India. The committee was of the view that
payment systems should move towards using a machine driven, online dispute resolution
(ODR) system to handle complaints expeditiously.

4. The National Consumer Disputes Redressal Commission drafted the Consumer Protection
(Mediation) Regulations, 2019 under the Consumer Protection Act 2019. These regulations
set out the procedure for empanelment of mediators at District, State and National level
consumer grievance forums, procedure of mediation proceedings, fees and costs.

5. Recently President of India Shri Ram Nath Kovind and Chief Justice of India Shri S.A.
Bobde stressed on the adoption of mediation as a tool for dispute resolution and integrating
artificial intelligence in judicial processes.

6. The Finance Ministry recently expressed the need for a new law to safeguard foreign
investments by speeding up dispute resolution in the country. An unpublished draft of the
Finance Ministry has proposed appointing an expert and setting up fast-track courts to settle
disputes between investors and the government.
35
ibid
7. The Finance Ministry recently unveiled the Amnesty Scheme ‘Vivad se Vishwas’ in the
2020 budget for Direct Taxpayers to settle appeals pending at various forums. Under this
scheme, the taxpayer will get a complete waiver on interest and penalty on the disputed tax
amount, if the scheme is availed by March 31, 2020, now extended to June 30, 2020 in view
of the current COVID-19 situation. 36

RECOMMENDATIONS FOR AN EFFECTIVE ODR MECHANISM

1. Enactment of a separate legislative Framework should be considered

2. Steps to be taken for security measures in ODR and not completely relying on IT
principles because they are framed for domestic purpose by each
country.
3. Separate online arbitration procedure should be initiated.
4. Awareness among the people regarding ODR mechanism as an effective tool for
settlement of dispute.
5. For proper and effective mechanism of ODR a proper infrastructure should be
initiated with background support from traditional arbitration principles.
6. Need of specialized institutions that can provide training, education, research and
policies for the success of ODR in India.
7. Develop a robust ODR platform, which is easily accessible, user-friendly, less
expensive and efficient for resolution of disputes.
The judiciary can refer pending matters to ODR platforms for dispute resolution. Lok
Adalats must be encouraged to utilize ODR platforms to conduct online Lok Adalats.
NALSA and state legal services authorities can be encouraged to engage with ODR
institutions. This way, courts can focus on urgent matters. Practitioners and lawyers
can focus on the more important cases particularly now, and it will enhance the
livelihood of lawyers who can engage as neutrals on these ODR platforms.
Court-mandated mediation under the Commercial Courts Act and the Consumer Protection
Act can be hosted on ODR platforms for far more consistent and deeper reach across the
Indian society.
CONCLUSION
The main features of traditional ADR mechanism such as impartiality, transparency in
dispute resolution, neutralizing of power imbalances between the parties are all found to be
incorporated even in ODR mechanism. This similarity between the two methods drives
people to try adopting this more effective and reliable method of dispute resolution especially
in the e-commerce business. ODR is a successful method when a combination of several
factors drives interested parties to get the desired results. A few them are building trust in the
parties to adopt to such method, identification of interests, ascertainment of facts, designing
of solutions, monitoring of agreements and building on experiences.
The historic forerunners of the odr mechanism such as e-bay and ICANN indicate that usage
of Web platforms rather than emails as a medium to communicate and settle disputes is a
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preferable option. ODR is no more limited to deal with disputes arising merely out of online
activities but also more than that Although ODR has been accepted and adopted only as a
testing and experimental platform for dispute resolution, the seriousness in adoption of the
mechanism will only augment when more awareness and institutional development takes
place by its stakeholders. It is a common belief that ODR may initially succeed in resolving
small claims related disputes as opposed to the high-stake matters as parties prefer to enter
into arbitration and present oral arguments in physical hearings in high stake cases.
The mindset of people will change when ODR processes get streamlined with the passage of
time and initial reluctance to use ODR will fade away. For an ODR system to prove more
practicable and feasible than litigation to a party, it needs to offer greater accessibility of
technology, infrastructure, affordability, and convenience of use, flexibility, transparency
apart from adequate security, impartiality, expertise and legal enforcement mechanisms.
Therefore, propagation of ODR practices will involve spreading awareness, public-private
partnership, IT training and education, bringing necessary changes to the legal frame work,
and to the extent possible, developing an internationally accepted body of core principles
with a substantive and procedural law for ODR practices. Thus, ODR holds a promising role
in creating an efficient regime for dispute resolution using Information Technology and to
promote growth of the economy as a whole. This process also shows how conventional
hurdles of differences in traditional systems, socio-cultural, legal and psychological
approaches can be flawlessly bridged by the use of technology Such is the power of
technology but if only put to the right use.