In era of globalization, people in 21st century have witnessed the ultimate
impact of Information and Communication Technology on social, economic, legal
and cultural arena of globe. Technological revolution brought by internet has
altered the scale according to which human affairs are being conducted and has
fostered a new medium that has impacted well-established legal conceptions
especially with respect to resolution.
The acceleration of change, increasing
complexity of relationships, transactions and the lowering cost of publication
accompanied by disputes and in response, there is growing need for the kinds of
creative technology-assisted dispute resolution process.
Justice delayed is justice denied.- William E. Gladstone a legal maxim which
means if justice is not administered in time then it is effectively equal to no
redress at all. Indian Judiciary is overburdened with pending litigation.
in administration of justice and high cost of litigation are its pitfalls. These
factors have resulted in loss of faith of people in Indian judicial system.
Thus, with advent of Alternative Dispute Resolution emphasis has been shifted
from traditional rigid method of solving the disputes through litigation to ADR.
Tremendous development in ICT in 20th and 21st century resulted into online
cross-border interactions and e- commerce activities on large scale leading to
e-disputes such as domain name disputes, hacking, privacy invasion, e-stalking,
e-purchase and sell of goods etc. which called for dispute resolution mechanism
to resolve the same.
ODR is basically employing of available information and communication technology
to deliver ADR services or is implementation of ADR in online environment. It
utilizes internet as a more efficient medium for parties to resolve their
disputes through a variety of ADR methods similar to traditional ADR.
Hon. Arthur M. Monty Ahalt (ret.) defined ODR as, 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. According to Katsh and Rifkin, three important factors,
namely convenience, trust and expertise forms the essence of ODR.
The assistance of ICT has been named by Katsh and Rifkin as the fourth party
since, in addition to the two disputing parties and third neutral party
(arbitrator, mediator, negotiator), there is a fourth party in process, which
is technology. As a matter of fact, the fourth party is used by third party as a
tool for assisting the process. ODR resolves e-disputes as well as
traditional disputes which are capable of being resolved by information
technology in minimal time and cost. It resolves B2B, B2C, and C2C disputes for
eg: Commercial, contractual performance, partnership, industrial, construction
contracts, defamation, family, intellectual property rights, business, banking,
insurance, privacy concern disputes etc.
ODR involves various methods of dispute resolution including e-Negotiation,
e-Conciliation, e- Mediation, e-Arbitration and hybrid mechanisms such as Medola,
Mini trial, Med Arb, fast track arbitration, Neutral Listener Agreement, Rent a
Judge, Concilio-Arbitration etc. It may adopt either adjudicatory or
non-adjudicatory process to have its decision binding or non-binding upon
C. Origin And Evaluation:
While Internet began in 1969, a need for ODR did not emerge until early 1990s as
there was ban upon commercial activity from the Internet until 1992. When ban
was lifted by National Science Foundation, there was attack of online disputes
and there were no organized dispute resolution institutions devoted to ODR.
Indeed, the acronym ODR had not yet been invented. The need for a sustained
ODR for growing number of disputes arising online activities prompted the
National Center for Automated Information Research to sponsor a conference on
ODR in 1996 leading to funding of three experimental ODR projects.
# The Virtual Magistrate project aimed at resolving disputes between Internet
Service Providers and users.
# The University of Massachusetts Online Ombuds Office stressed upon the
Internet disputes generally.
# The University of Maryland proposed to see if ODR could be employed in family
disputes where parents were located at a distance.
Since 1999, many ODR service providers such as Modria, Cybersettle,
ClickNsettle.com, SmartSettle, Legal Referee, BBB Online have actively resolved
disputes both in public and private domain involving government and commercial
entities. In India, organizations such as Perry4Law, NIXI (.IN domain), TLCEODRI
have also been advocating and taking initiative for ODR in India.
D. Shadow of Law:
Apart from various sources of international arbitration law, such as the
European Convention on International Commercial Arbitration 1961 and
Inter-American Convention on International Commercial 1975 supplemented by
Inter-American Convention on Extraterritorial Validity of Foreign Judgments and
Arbitral Awards 1979, EU Directive on electronic commerce, institutional
rules and private contractual agreements, at international level, there are two
# New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, 1958 and
# UNCITRAL Model Law on International Commercial Arbitration and
At domestic levels in ancient, when there were no courts of law in India
disputes were resolved by elder member of family, Sarpanch of Village or by
Kulas, Srenis, Phugas or Parishadas.
During British Empire, various laws were enacted to promote arbitration such as Madras
Presidency Regulation Act, Bombay Presidency Regulation Act, and The Charter Act
1933. But the historical step was taken with enactment of Indian Arbitration Act
1940, which was solely based upon English Arbitration Act. It dealt with mainly
i. The Constitution of India:
After the independence, Constitution of India was adopted, wherein, Article 21
declares that no person shall be deprived of his life or his personal liberty
except according to procedure established by law. And the procedure must be
“reasonable, fair and just.” Supreme Court of India in landmark
case held that right to speedy trial is part and parcel of right to life or
ii. The Code of Civil Procedure, 1908:
By Civil Procedure Code Amendment Act 1999, Section 89 (Settlement of Dispute
outside Court) and Rules 1A to 1C, Order10 (Direction of Court to opt for any
one mode of ADR after first hearing of suit) were inserted which has
made it incumbent upon courts where there exists elements of settlement to call
upon the parties at their option to agree for one or other ADR methods.
iii. Arbitration and Conciliation Act, 1996:
The Act has been enacted on basis of UNCITRAL Model Law on International
Commercial Arbitration, 1985 and Conciliation Rules, 1980 with an important
feature to harmonize the concept of Arbitration and Conciliation of different
legal systems of the world and to have its universal application. The main
object of act is to encourage settlement of dispute amicably via Arbitration,
Conciliation at domestic and international level. It permits Mediation,
Conciliation or other procedures during arbitral proceedings to encourage
settlement of disputes. Act also gives settlement agreement reached by
parties as a result of proceedings the status of court judgment under section 73
of this Act. Recently, Arbitration and Conciliation (Amendment) Act, 2015,
gave legal recognition to Arbitration Agreement entered into by communication
through electronic means, which is a positive initiative towards the promotion
of ODR in effective manner.
iv. Information and Technology Act, 2000:
The concepts of writing and signature have been recently significantly
modernized to provide greater certainty to online contracts and thereby
facilitate e-commerce. The most important step to this end was taken on
international level by adopting the UNCITRAL Model Law on Electronic
Commerce in 1996. Then, UNCITRAL Model Law on Electronic Signatures 2001
was adopted. Those legislative changes resulted in “a global reform of writing
requirement” The Information and Technology Act, 2000 being based on
UNCITRAL Model Law of e-commerce was enacted in India to facilitate e-commerce
and gives legal recognition to e-transactions. Section 4, 5, 10-A, 11-15 of
the Act reflects the legal recognition to electronic records and signature.
v. Indian Evidence Act, 1872:
What if the agreements entered into through e-communication are not admissible
as evidence in courts of law? For this purpose Section 65-A and 65-B were
inserted which has made electronic evidence as secondary copy to be admissible
in courts of law subject to the satisfaction of requirements mentioned in
E. Strengths And Challenges:
ODR has number of advantages over traditional courts system where parties have
autonomy over proceedings. Such as:
i. Time and Cost Management:
ODR obviates the need for travelling and substantially reduces cost. It allows
for better time and cost management, greater flexibility in procedure and more
ii. Flexible and Informal:
ODR promotes speedy resolution in flexible and informal manner if compared with
rigid court procedure followed since ages.
iii. Trust and Confidence:
ODR enhances trust and confidence in e-commerce environment due to its speedy
access to justice, flexibility, time and cost management which promotes
e-commerce and overcomes geographical barriers.
iv. Asynchronous communication:
The asynchronous Internet communications have advantage of being edited in
contrast to impulsive responses that often can take place in real time
face-to-face mediation discussions.
v. Communication through Videoconference:
Lodder and Zeleznikow argued that it can happen for disputes in which the
emotional involvement of the parties is so high that it is preferable that they
do not see each other. It has been taken as the most significant
disadvantage of ODR due to lack of face-to-face communication. But it’s been
argued that videoconferencing is an “obvious solution to the lack of
face-to-face encounters” in online dispute resolution.
vi. Easy to Access:
ODR can be accessed anywhere at any time wherever internet is available as per
the convenience and necessity of parties.
vii. Data Storage:
Document storage being one of the most usual problems faced in Indian courts has
got replaced by ODR mechanism where data storage is secured for saving and
transmitting documents as and when necessary without any hassle.
ODR faces various obstacles in its way of growth in India such as lack of human
interaction and communication, lack of literacy, inadequate confidentiality and
secrecy of proceedings, lack of trust and confidence, limited range of disputes,
cultural, educational and language barriers, negative mindset of lawyers. But
one of crucial and pivotal challenge is the admissibility of ODR.
i. i. Challenges as To Admissibility:
a) Mutual Consent and Writing:
For invoking ODR process, mutual consent of parties is essential, whether
through an explicit clause in contract or by separate mutual agreement between
parties, otherwise any decision rendered by neutral shall not be legally valid
and binding on parties. Another essential condition is agreement between
parties must be in writing. Article 2 of New York Convention and Article 7(2) of
UNCITRAL Model Law requires the agreement must in writing. But at the same time
New York Convention is silent upon agreements entered into through electronic
communications. Whereas UNCITRAL Model law recognizes the arbitration agreements
entered into by electronic communications and the same has been followed by
India its 2015 Amendment to Act of 1996.
b) Place of Proceeding:
In adjudicatory process, place of arbitration is geographically determined which
constitutes a core element on which numerous legal implications depend. If
proceedings are conducted entirely online with parties and neutral in distinct
places, prima facie, it seems impossible to determine place of proceedings. This
observation led some scholars to conclusion that virtual arbitration has no situs
When disputes are resolved online, question as to applicable substantive law to
disputes arises. In case of international arbitration it is important to
distinguish four choices of law issues,
a) Substantive law governing merits of parties’ contract and claim
b) Substantive law governing parties’ arbitration agreement
c) Law applicable to arbitration proceedings (curial law
or lex arbitri) Conflict of law rules applicable to each of forgoing laws.
iii. Pre-trial Stage:
Important elements of pre-trial stage are discovery, interrogatories and
collation of evidence in support respective contentions of parties
may be minimized in ODR for speedy resolution leading to failure to discover
true and correct state of facts.
Taking New York Convention as a starting point for analysis of whether
electronic arbitral awards are admissible within current legal framework, it can
be noted that convention does not explicitly provide for an arbitral award
signed and in writing. Further, Article 8 of UNCITRAL Model Law on
Electronic Commerce explicitly states that requirement to present information in
its original form can be met by an electronic data message. Article 31 (1) of
UNCITRAL Model Law, requires “award shall be made in writing and shall be signed
by arbitrator.” Followed from Model Law, in India section 31 of Arbitration and
Conciliation Act, 1996 requires the same. But, traditional concept of writing
and signature now has been replaced by Information and Technology act, 2000
which has given legal recognition to electronic records and
It is the single most important pillar upon which edifice of international
arbitration rests. If Act of 1996 is considered following points
to be considered:
a) In adjudicatory process decisions are to be enforced through
the courts of law.
b) Orders in execution are subject to appeal
c) Intervention of court during and after pronouncement
This may give rise to issues like jurisdictions or law applicable
or place of proceedings for which there is need to apply the conflict of rules
or proper laws to avoid forum shopping.
F. Judicial Pronouncement
Landmark cases such as Tata Sons v. The Advanced Information Technology
Association and Maruti Udyog Limited v. Maruti Software Pvt.
Ltd. Wherein WIPO, the Arbitration and Mediation center was made the
medium to solve the Domain name dispute.
In State of Maharashtra v. Dr. Praful B. Desai Supreme Court held that
video-conferencing could be resorted to for taking evidence of witnesses by
stating that recording of evidence satisfies the object of Section 273 of the
Code of Criminal Procedure that evidence be recorded in the presence of
In Trimex, the Hon’ble Supreme Court held the online arbitration agreement
is the most important document of arbitration and since parties do not meet
personally but rather virtually, it is pertinent that the agreement clearly
defines all particulars of dispute resolution mechanism. There must be meeting
of minds and the agreement must be according to Section 7 of the Arbitration and
Conciliation Act 1996.
In Shakti Bhog Food Ltd. v. kola Shipping Ltd., communication and acceptance
by telex, telegram and other mode of communication has been accepted as valid
mode of communication.
G. Suggestion And Conclusion
With the immense growth of online market, ODR mechanism in order to fasten its
leg needs mass awareness and training through social media, education, street
plays, advertisement, conferences, workshops and campaigns etc
at gross root level. Participation of government also plays very
important role to grant financial aid to ODR projects and to assist in creating
technical and administrative infrastructure required to set up an ODR process.
The issues as to privacy and confidentiality needs to be tackled by using
privacy enhancing techniques and stronger security mechanisms such as privacy
design methods, privacy engineering, and privacy
self-synchronization etc. to maximize the benefits of new breed of
technology led disputes. There is also need for codification of laws, uniform
standards and rules including implications of conflict of law rules which will
ultimately provide for recognition, admissibility of ODR process nationally as
well as internationally.
The necessity is to ensure access to justice at affordable cost to all sections
of society. A sound communication infrastructure is necessary for easy access
and justice must be delivered in minimal time and in adequate manner by
increasing literacy rate, reducing language and cultural barriers, and easy
access to e-courts which may put a hand for growth of e-commerce and e-
governance. Initiatives at national as well as at international level are to be
taken to flourish the wings of ODR thereby reducing burden on judiciary. Thus
the step to advance ODR is a key to facilitate global harmony and to encourage
international relationship in cross-border disputes.
 Mohamed S. Abdel Wahab, Ethan Katsh and Daniel Rainey ( Eds.), Online
Dispute Resolution: Theory and Practice. A Treatise on Technology and Dispute
Resolution at 13. Published, sold and distributed by Eleven International
Publishing, The Hague, Netherlands, available at: www.elevenpub.com (Visited on
28th November 2017).
 Hon. Arthur M. Monty Ahalt (ret.), What You Should Know About Online Dispute
at: https://www.virtualcourthouse.com/index.cfm/feature/1_7/what-you-should-know-about-online-dispute- resolution.cfm
 Katsh E, Online Dispute Resolution: some implications have emergence of law
in cyber space, Lex Electronica, vol.10n.3,hiver/winter2006, available
E.Katsh and J. Rifkin, Online Dispute Resolution: Resolving Conflicts in
Cyberspace, Jossey-Bass,San Francisco2001, Jossey-Bass; 1 edition (April 26,
 Katsh and Wing: Ten years of Online Dispute Resolution (ODR): Looking at the
Past and Constructing the Future 38 (2006) U. Tol. L. Rev., at 35)
 Jay P. Kesan, and Rajiv C. Shah. Fool Us Once Shame On You - Fool Us Twice
Shame On Us: What We Can Learn From the Privatizations of the Internet Backbone
Network and the Domain Name System, available
at: https://openscholarship.wustl.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article=139 9&context=law_lawreview
 Supra Note 4
 Dispute Resolution Conference May 22, 1996 Washington, D.C. Sponsored by
NCAIR, available at: https://www.umass.edu/dispute/ncair/
 Robert Gellman. “A Brief History of the Virtual Magistrate Project: The
Early Months” (1996), available
 Ethan Katsh, “The Online Ombuds Office: Adapting Dispute Resolution to
Cyberspace” (1996), available at: https://www.umass.edu/dispute/ncair/katsh.htm
 Supra Note 4
 See http://odrindia.in/
 European Convention on International Commercial Arbitration, United
Nations, Treaty Series, vol. 484, No. 7041 (1963-1964) entered into force in
 Inter-American Convention on International Commercial Arbitration
(Organization of American States, Treaty Series, no. 42) entered into force in
1976, available at: http://www.oas.org/juridico/english/sigs/b-35.html
 Inter-American Convention on Extraterritorial Validity of Foreign Judgments
and Arbitral Awards (Organization of American States, Treaty Series, no. 51)
entered into force in 1980, available
 Directive 2000/31/EC of the European Parliament and of the Council of 8
June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (Directive on electronic
commerce), published in Official Journal of the European Communities dated
17.7.2000, L 178/1, available
 Maneka Gandhi v. U.O.I, AIR 1978 SC 597.
 Hussainara Khatoon (1) v. Home Secretary, State of Bihar (1980) 1 SCC 81
 Code of Civil Procedure, 1908, available
at: http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/index.php?Title=Code%20of%20Civil%20Pro cedure,%201908
 Justice Dr. B.P. Saraf and Justice S.N. Jhunjhunwala, Law of Arbitration
and Conciliation, 5th Edition 2009 published by Ketan Thakkar for for Snow White
Publications Pvt. Ltd. at 11.
 Dr. Anupam Kurlwal, An Introduction to Alternative Dispute
Resolution System (ADR), at 181-188, (Central Law Publications, Allahabad,
Second Edition, 2014).
 Arbitration and Conciliation Act,1996, available
at: http://www.advocatekhoj.com/library/bareacts/arbitrationandconciliation/index.php?Title=Arbitration%20and%20C onciliation%20Act,%201996
 H. Yu & M. Nasir, “Can Online Arbitration Exist Within the Traditional
Arbitration Framework?” (2003) 20 J. Int’l Arb. 455 at 459.
 The UNCITRAL Model Law on Electronic Commerce was adopted by the General
Assembly Resolution 51/162 of 16 December 1996, and amended in 1998,
available at: http://www.uncitral.org/
 See http://www.uncitral.org/english/texts/electcom/ml-elecsig-e.pdf
 Hörnle, “Online Dispute Resolution: More than the Emperor’s New Clothes” in
E. Katsh & D. Choi, eds., Online Dispute Resolution (ODR): Technology as the
“Fourth Party”. Papers and Proceedings of the 2003 United Nations Forum on ODR
(2003), available at: http://www.odr.info/unece2003/pdf/Hornle.pdf
 Information Technology Act, 2000 available
 Hörnle, Online Dispute Resolution, Julia Hörnle, “Online Dispute
Resolution” in John Tackaberry and Arthur Marriott, Bernstein’s Handbook of
Arbitration and Dispute Resolution Practice, at 783, Volume 1 (Sweet & Maxwell,
London: 2003) and E. Casey Lide, “ADR and Cyberspace: The Role of Alternative
Dispute Resolution in Online Commerce, Intellectual Property and Defamation”
(1996) 12 Ohio St. J. on Disp. Resol. at 219.
 Jim Melamed, “The Internet and Divorce Mediation”, available
at: http://www.mediate.com/articles/melamed9.cfm .
 Lodder and Zeleznikow, Arno R. Lodder and John Zeleznikow, “Developing an
Online Dispute Resolution Environment: Dialogue Tools and Negotiation Support
Systems in a Three-Step Model” (2005) 10 Harv. Negotiation L. Rev. 287 at
302: “It can happen when parties have a history of violent conflict, the
costs of being in the same room are exorbitant, parties are in different time
zones, or parties cannot agree upon a joint meeting time.”
 Ethan Katsh, Janet Rifkin and Alan Gaitenby, “E-Commerce, E-Disputes, and
E-Dispute Resolution: In the Shadow of ‘eBay Law’,” (2000) 15 Ohio St. J.
On Disp. Resol.705 at 718.
 D. Girsberger & D. Schramm, “Cyber-Arbitration” (2002) 3 European Business
Organization Law Review 605 at 617.
 P. Carrington, “Virtual Arbitration” (2000) 15 Ohio St. J. on Disp. Resol.
669 at 669.
 Gary, B.Born, INTERNATIONAL COMMERCIAL ARBITRATION IN UNITED STATES, 24
 It must noted, however, that according to some writers such requirements
should be construed under the NYC – See: M. E. Schneider, Ch. Kuner, “Dispute
Resolution in International Electronic Commerce”, (1997) 14 J. Int’l Arb. at 24.
Certainly, in 1958, all arbitral awards were written on paper and signed, in ink
and by hand, by arbitrators.
 Supra Note
 Tata Sons v. The Advanced Information Technology Association (“AITA”),
available at: http://arbiter.wipo.int/domain/decisions/2000-0049.html
 See http://www.wipo.int/amc/en/domains/decisions/html/2000/d2000-1038.html
 State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601, available
 Trimex International FZE Ltd. v. Vedanta Aluminium Ltd. (2010) 3 SCC 1,
available at: https://indiankanoon.org/doc/658803/
 See https://indiankanoon.org/doc/175517975/
 The principle of privacy by design states that privacy and data
protection are embedded throughout the entire life cycle of technologies, from
the early design stage to their deployment, use and ultimate disposal.
 The practice of constructing, ostensibly, software or information systems
that adhere to given privacy policies and relevant compliances is a developing
area and is known as Privacy engineering.
 Privacy self-synchronization is the mode by which the stakeholders of an
enterprise privacy program spontaneously contribute collaboratively to the
program's maximum success. The stakeholders may be customers, employees,
managers, executives, suppliers, partners or investors. When
self-synchronization is reached, the model states that the personal interests of
individuals toward their privacy is in balance with the business interests of
enterprises who collect and use the personal information of those individuals.