Monthly Archives: October 2014

Corporate Disputes And Online Dispute Resolution In India

Corporate Disputes And Online Dispute Resolution In IndiaCorporate laws in India have now transformed into corporate governance laws in India. This shift was not easy and it took considerable amount to time, energy and resources. The Indian companies Act, 2013 has changed the corporate regulatory scenario for Indian companies and its directors. Technology related issues have also been introduced by the Companies Act 2013. These include maintenance and inspection of documents in electronic form, sending of notices of meetings in electronic form, introduction of electronic voting, cyber law and cyber security obligations, etc.

In these changed circumstances, many transactions, businesses and disputes would also arise that require a modern solution. Disputes among corporate stakeholders are very common. For obvious reasons corporates prefer to use alternative dispute resolution (ADR) mechanism instead of traditional litigation route. Traditional litigation is time consuming and expansive whereas ADR mechanisms are effective, economical and speedier in nature.

The corporate agreements of these corporate houses essentially contain an arbitration clause and adoption of arbitration proceeding to resolve various future differences and disputes. Commercial disputes require immediate and appropriate dispute resolution to retain faith of business and commercial community in the dispute resolution machinery. India has not been a preferred destination for commercial disputes resolution due to inadequate commercial dispute resolution machinery.

India needs to strengthen its alternative dispute resolution (ADR) mechanism as well as online dispute resolution (ODR) mechanism to inculcate confidence among the business community. Similarly, the Arbitration and Conciliation Act, 1996 must also be suitable amended to incorporate necessary provisions regarding ODR and e-courts. There is an urgent need to establish e-judiciary in India as well. Till the month of October 2014 we are still waiting for the establishment of first e-court of India.

The present arbitration law of India is not adequate for ad hoc as well as institutionalised arbitration. It is also not effective for international commercial arbitration as well. Moily is planning to bring suitable amendments in the arbitration law of India. With this we can hope that India may get its deserving share of ad hoc and institutionalised arbitration and commercial dispute resolution services.

It is high time for big corporate houses to shift to next dispute resolution revolution known as online dispute resolution (ODR) in India. Companies and individuals must give more stress to ADR and ODR services in India as they are more productive than traditional litigation system of India. In fact, having e-courts and ODR in India can solve almost all the legal problems of companies and individuals in India and world wide.

Information and communication technology (ICT) is considered to be a good option for resolving disputes of modern days. Concepts like online dispute resolution (ODR) and e-courts are proof of the same. Unfortunately, neither online dispute resolution in India nor e-courts in India has been accepted and implemented. In fact, we have a single techno legal e-courts training and consultancy centre of India and a single online dispute resolution (ODR) centre in India. Further, Perry4Law’s Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India. The scope for online dispute resolution (ODR) services in India in general and techno legal online dispute resolution (ODR) services in India in particular is really good. However, in order to capatilise the same, an early and proper start is necessary.

Online dispute resolution (ODR) and international response is still lukewarm but at least a beginning has been made there. While international online dispute resolution regime has started exploring use of ICT for disputes resolution, online dispute resolution in Asia is still growing. Online dispute resolution in Asian countries is largely confined to a single or two countries that also to a limited extent. Clearly online dispute resolution standards of practice for India and Asia need to be developed urgently.

In fact, techno legal ODR services have become necessary due to growing use of information technology for business and commercial purposes world over. For instance, ODR and cross border e-commerce transactions are also interrelated. Similar is the case regarding dispute resolution of cross border technology transactions.

Dispute resolution in technology transactions is the upcoming trend in the field of ODR. Dispute resolution of cross border technology transactions is a complicated process if we adopt traditional litigation methods to resolve them. Dispute resolution in technology transactions and dealings requires an effective, timely and cost effective mechanism. Traditional litigation is definitely not the place to achieve these objectives.

Obviously, we need an effective alternative to traditional litigation methods to resolve cross border technology transactions and dispute resolutions. Alternative dispute resolution (ADR) mechanisms like arbitration, conciliation, mediation, etc can be used effectively to resolve these technology transactions disputes. For instance, online dispute resolution (ODR) for cross border e-commerce transactions is already been used to resolved small value disputes.

Similarly, legal issues of media and entertainment industry of India have assumed tremendous importance. Entertainment and media industry dispute resolution in India can be resolved using online dispute resolution. Dispute prevention and resolution in the film and media industry in India is presently not exploring use of online dispute resolution.

However, nothing can strengthen ODR more than international efforts and international coordination activities. International legal standards for online dispute resolution (ODR) and international harmonisation of ODR is urgently required. United Nations can play an important role in international development and international harmonisation of ODR. United Nations and online dispute resolution are closely related in this regard. In fact, UNCITRAL, ODR and India are interconnected and we need an international harmonisation of ODR legal framework as well as suitable policies at the national level. Efforts in this direction have already been undertaken at the international level and very soon we may see some development in this regard.

Alternative dispute resolution in India is well known in India and we need to make efforts in the direction of ODR as well. While doping so we must keep in mind the requirements of privacy laws in India, data protection requirements (PDF) and dispute resolution and ODR. Online commercial arbitration in India also needs to be developed. The sooner these issues are addressed the better it would be for the growth and development of ODR in India.

E-courts and ODR are two most important uses of technology for dispute resolution and adjudicating of cases. However, India has been slow on both these fronts. For instance, till the end of October 2014, we are still waiting for the establishment of first e-court in India. This is so because India lacks techno legal expertise for establishment of e-courts. PTLB, the premier techno legal segment of Perry4Law Organisation and ICT law firm Perry4Law, is managing the exclusive techno legal e-courts training and consultancy centre of India.

It is clear that establishment of e-courts in India must be expedited. There is an urgent need to adequately use information technology for streamlining the judicial system of India. Presently, the efforts in this regard are not satisfactory at all. Even the national litigation policy of India (NLPI) 2010 (PDF) failed to address this issue.  Let us hope that by the end of this year; at least the Indian government would start thinking in this direction.