Introduction
The ODR Operational Committee of the United Nations Commission on International Trade Law defines ODR as “a mechanism for resolving disputes facilitated through the use of electronic communications and other information and communication technology”. ODR is essentially e-ADR, with dealings occurring over the internet. ODR provides more advantages than typical offline ADR processes since participants do not need to be physically available, and resolution can occur through non-synchronous conversation. That could mean that the neutral parties and the main party are not required to interact at the same time and can record their replies whenever they like. As a result, in ODR, technology is referred to as the “fourth party.” Aside from these, ODR has several important advantages. First and foremost, ODR is cost-effective. ODR can dramatically cut the expenses of settling a dispute because it relies on video conferencing and technology to transfer information. Second, it’s very effective for settling cross-border conflicts and challenges that develop as a result of several jurisdictions. Because of this, ODR has seen early acceptance in settling e-commerce transactions involving parties from multiple countries, as well as disputes having little or no value originating from both transactions between businesses and consumers and between businesses and businesses, when going to court is not a sound economic decision.[1]
Global Usage of ODR
- Consumer Disputes
According to the European Online Dispute Resolution agencies, every online trader in the EU, Liechtenstein, Denmark, and Norway must include a readily available link for the ODR platform on their webpage for submitting complaints and user information. In Mexico, the National Competition Law Agency known as the Office of the Prosecuting Attorney for the Consumer is in charge of overseeing Concilianet, which is an online dispute resolution framework for customers with complaints against merchants of services and products. Consumers can file complaints either in an offline format which is in-person or online, and the Agency will resolve them over the internet or the phone. Customers can also seek counsel from Profeco at module installations to help speed up the settlement process for each situation.
- Insurance Claims
ODR is now being used by private businesses to resolve insurance claims. Cybersettle, a website situated in North America that was founded in 1998, is a good illustration of this. It is a computer-assisted website that allows participants to negotiate by a series of blind bidding rounds. If the offers are near enough, the website calculates and negotiates a resolution. CyberSettle has settled cases worth over USD 1.6 billion by 2011 which includes over 200,000 cases. The insurance industry has a lot of promise for employing AI to help with court and private negotiations.[2]
- IP/ Domain Name Disputes
Because parties desire to protect their intellectual property rights, domain name registration is a contested method that could lead to descriptions. As a result, the World Intellectual Property Organization (WIPO) devised the UDRP, which is a resolution policy of Domain Name Dispute, which the ICANN, a corporation for assigned numbers or names, is now implementing. For settling domain name cases, a cost-effective online arbitration mechanism is used. WIPO is seeking to increase online arbitration activities to additional intellectual property issues, where all submissions, discussions, and fees will be done electronically.
- Domestic Disputes
By removing geographical and financial constraints, online technologies can help spur settlement efforts. Furthermore, it promotes dialogue without posing a threat in circumstances of domestic violence or animosity. However, few sites provide these services in family conflicts. Furthermore, in most countries, internet aids in divorce disputes are limited to case filing. Despite its immense potential, ODR has yet to be fully utilized in the context of social conflicts.[3]
Capacity Building and Steady Logistical Support
The technological capabilities and internet penetration of India’s people are important factors in making ODR a reality. Even though India has a large internet penetration, it only makes up 34.8 percent of the population in 2016. The lack of infrastructure, such as inexpensive PCs, and restricted internet connectivity are the key hurdles to widespread implementation of ODR. These structural issues would necessitate a resource-intensive and large-scale engagement from the side of both the commercial actors and the government to build capabilities that would allow India to embrace ODR. Aside from technological challenges, ODR has cognitive issues, because individuals as they are with face-to-face contact, may not be as familiar with an online connection. The efforts made to go forward will fail to generate quick support for ODR unless there is a mindset shift. India’s relationship with internet technology looks to be altering, as the country’s dependence on e-commerce is the main aspect of revenue growth. The procedures and strategies used by e-commerce businesses should be investigated to guarantee that at least among the internet generation, ODR has a solid foundation.[4]
The preceding are a few notable beneficial advancements in ODR. For this energy to properly transform into long-term ODR acceptance, a few issues must be solved soon. These are:-
One of the most appealing features of ODR is that it does not need geographically localized proceedings. ODR provides a neutral area on the internet for cross-border parties to resolve their issues. However, the chance of proceedings being challenged on jurisdictional grounds grows. Current ADR cases have already encountered jurisdictional concerns and challenges across the nation. The relevant legislation, the arbitration’s seat, the language of the proceedings, and the arbitrator’s understanding of both countries remain obstacles to the existing arbitration structure. These complications are exacerbated in an online environment where jurisdictional lines are still being drawn. As a result, any legislative or regulatory framework for ODR must address these problems. –
Second, one of the most important aspects of ADR’s effectiveness is its secrecy. When this procedure is carried out online, there is certain to be some worry about data privacy both before and after the procedure. The only way to safeguard the interests of the participants is to ensure that rules and regulations are in place that mandate a strict privacy policy and data protection, and these provisions must be revealed to the stakeholders.[5]
Some Important Frameworks for ODR
1) Legal Principles
- Natural justice may be achieved by providing all parties with a fair and equal hearing chance. It may be further secured by implementing frameworks and building platforms that eliminate any biases and the potential for misconduct by both sides and the mediator-arbitrator.
- Online platforms should be there for quick and effective dispute settlement. Steps must be undertaken to shorten the time it takes for a conflict to be resolved.
- The platforms for alternative dispute resolution should strive to make the process more inclusive. Innovation must aid access rather than hinder it. Convenient user environments, particular features for individuals with impairments, and local language translations ought to be available.
- Accountability mechanisms should be implemented to regulate the use of ICT in adjudicatory or negotiating procedures and ODR institutions’ behavior. Internal accountability mechanisms and External regulators, both built into the software, might be utilized to put these safeguards in place.[6]
2) Technology Principles
- Platforms for ODR should aim to employ software whose source code is publicly Present and could be shared and updated. That will aid the county’s collaborative growth of the ODR ecosystem.
- Platforms for alternative dispute resolution should be built to be scalable, allowing them to expand their services to other sorts of conflicts and areas. Similarly, the ability to get updated with newer features without disrupting or affecting the remainder of the system’s operation is crucial.
- To analyze these systems’ productivity and effectiveness, they must have built-in verifiability in their technical design. This data may then be utilized to enhance the ODR environment overall.
- There will almost certainly be a lot of important information-related conflicts that are handled through ODR. To boost public trust in the ODR process, a strong digital security architecture is required.[7]
Conclusion
The abovementioned path to mainstreaming ODR will have to adjust to changing requirements from the profession, the benches, ADR professionals/institutions, and opposing clients. The parties indicated above must be prepared and educated to regard technologies as a partner rather than a threat. As a consequence, ODR will not only are becoming the accepted era but also usher in a new era of research and innovation in the government’s dispute settlement environment.[8]
Author(s) Name: Anuj Chhabra (Rajiv Gandhi National University of Law, Patiala)
References:
[1] Gintarepetreikyte, ‘ODR Platforms: eBay Resolution Center’ (The 15 th ODR Conference, 14 April 2016) accessed 8 May 2022.
[2] United Nations Commission on International Trade Law, ‘UNCITRAL Technical Notes on Online Dispute Resolution’ (2017) vii accessed 08 May 2022.
[3] E.Kash and J. Rofkin, Online Dispute Resolution- Resolving Disputes in Cyberspace (2002).
[4] Civil Resolution Tribunal, ‘Starting a Dispute’ accessed 08 May 2022.
[5] European Commission ‘Online Dispute Resolution’ accessed 08 May 2022.
[6] Fabien Gelinas, ‘Alternative Dispute Resolution (ADR) Online Mechanisms For SME Cross-Border Dispute’ (OECD 2004) accessed 08 May 2022.
[7] Dr. Pablo Cortés, ‘What should the ideal ODR system for e-commerce consumers look like?’ at The Hidden World of Consumer ADR: Redress and Behaviour’ (Oxford 2011) accessed 08 May 2022.
[8] NITI Aayog and others, ‘Catalysing Online Dispute Resolution in India’ (NITI Ayog, 14 July 2019) accessed 08 May 2022
