ACCESSIBILITY OF ONLINE MEANS OF ALTERNATIVE DISPUTE RESOLUTION

ABSTRACT

Nowadays, where business interactions and professional relationships between people and body corporate are increasing, all these also lead to increased conflicts and disputes between parties. Although such disputes can be resolved through offline as well as online modes, parties these days prefer online medium to resolve disputes. Online medium of dispute resolution came into the dispute resolution arena in the late 1990s when internet was widespread and became accessible to all and easy to use. People started resorting to online medium of communication, like emails, rather than offline modes of communication. Thisarticle deals with a basic understanding of online dispute resolution, its advantages and disadvantages, its applicability on the international platform with the help of a couple of leading judgments.

Keywords- Online Dispute Resolution, Arbitration, Mediation, Efficiency.

INTRODUCTION

In this technology-driven world where everything is being digitalized, the convenience of technology can also be seen in the new mode of resolving disputes, which is ODR (Online Dispute Resolution). ODR is a form of online settlement that uses alternative methods for dispute resolution.[1] ODR system can also be used for resolving disputes that arise through offline medium as well as those disputes that arise online.  Here, communications are made and notices are sent via e-mail and meetings are conducted virtually by chat rooms or video conferencing. All documents and evidences are submitted online. All the arguments are heard online, questions are raised and answered online and the decision is also delivered over this medium.

ODR system is of two types-

  1. Synchronous communication-where communication between parties and mediator or arbitrator take place in a continuous manner
  2. Asynchronous communication- where communication between parties and mediator or arbitrator does not happen continuously. Instead, the interaction takes place at intervals. [2]

ADVANTAGES

Online method of resolving disputes has proved to be more effective and less time consuming than the offline method. Parties save the time and cost involved in travelling to the location of the meeting and also save time and efforts that are involved in other lengthy court procedures.  It is also more flexible as parties can have sufficient time to respond to communications, and discussions or meetings can take place at the convenience of the parties. It also offers communication between the concerned parties in a controlled environment.[3] 

DISADVANTAGES

This mode carries with it few disadvantages as well. In online mode, especially in asynchronous communication, one might not be able to apprehend interest, needs and reactions of parties. This leads to interrupted communication, which may not be as effective as online medium. There is also a high possibility of parties misunderstanding the e-mails or the communications received. There are chances that a party might misrepresent or present false information. This medium often faces security and confidentiality issues. Although it is technology friendly, there are risks that some information might get leaked. Also, there are people who are hesitant to use technology and would rather prefer offline mode..

INDIAN AND INTERNATIONAL SCENARIO

ODR is generally resorted to for domain name disputes.[4]  Internet domain name disputes are usually governed by the Internet Corporation for Assigned Names and Numbers (“ICANN”) Uniform Domain Name Dispute Resolution Policy (“UDRP”). [5] The task of administering procedures of UDRP and appointment of panelists for resolving such domain name disputes is done by World Intellectual Property Organization (WIPO). It is a cost and time-effective method and is not binding on the parties to the dispute, but is binding and effective for the domain name provider who has to follow the decision and make necessary changes accordingly. Parties have an option to prefer an appeal to the courts, but generally, it is not done due to lethargic and lengthy court procedures. On the other hand, there are jurisdictions where parties cannot prefer an appeal from the decision of the panelist. For instance, HonKong Dispute Resolution Policy, which is specifically for domain names, states that award rendered by panelist is not subject to appeal in any court.

The UDRP provides for resolving of domain name disputes by courts as well as by administrative dispute resolution proceedings, which are administered by a service provider approved by ICANN. At present, there are four domain name dispute resolution service providers that have been approved by ICANN, namely: WIPO, National arbitration forum, e-Resolutions, CPR institute for dispute resolution.[6]

Nowadays, many companies have started providing ODR services professionally. They provide easily accessible services, although at high rates, but their services are equally worthy and effective. The company itself appoints the mediator and facilitates all the other procedures.

Amongst all the forms of alternate dispute resolution, e-mediation has been the most successful one. U.K. has experienced online mediation in Ombudsman office since 1996. U.S. and Canada also have started providing online mediation facility recently. Cyber Tribunal in Montreal has also been established in US for providing online mediation facility free-of-charge. There are also various websites providing this facility, namely, http://www.mediate.com, http://www.novajorum.com, http://www.icaarthouse.com, www.etribunal.com, etc.  Worldwide, there are a number of institutional ODR service providers.

CASE LAWS

WIPO has successfully rendered various judgments relating to online dispute resolution. It has extended, to thousands of internet users, easily accessible and reliable means of dispute resolution and delivered substantial justice in a very short span of time.[7] Some cases are discussed below-

Tata Motors Limited v. liu lei[8]

The domain name in dispute here is ‘tataok.com’. TATA has one of its business line named ‘TATA OK’, which is a registered trademark in India since 2010. Later, in 2018, the same name was registered as a domain name. The complaint was filed at WIPO Arbitration and Mediation Centre. All the communications were made to the Registrar and to the parties via –mail. The centre accepted the complaint only after being satisfied that complaint satisfied the requirements of UDRP and WIPO rules. A panellist was appointed who held to be identical to the existing trademark. It was held that the respondents have no interest or rights over the disputed domain name and have been using the same in bad faith.

Tata Motors Limited v. liu lei[9]

The domain name in dispute here is ‘marutionline.com’. The complainant had rights over the trademark ‘Maruti’ since 1976. It also owned various domain names with word ‘Maruti’. The respondent held the domain name ‘Marutionline.com’. The complaint regarding the same was filed with WIPO Mediation and Arbitration Centre. The centre made communications to the Registrar via e-mail and also received reply via the same medium. The centre, after being satisfied that the complaint fulfills requirements of UDRP and WIPO rules, accepted the complaint. A panelist was appointed. All communication were made, evidences and documents were submitted via e-mail. It was held that the domain name of the respondent is identical to the registered trademark of the complainant. All rights were held to be vested with the complainant.

Tata Sons Ltd. v. Edwin Antony[10]

The domain name in dispute is ‘tatagroupcareers.info’. The complainant here has been the registered owner of a well-known trademark ‘TATA’ for more than 100 years. In 2018, respondent registered the domain name ‘tatagroupcareers.info’. The webpage of the respondent also reflected the office address of the complainant. It was held that the said domain name is similar to the already registered trademark of the complainant and the respondent is using the said domain name in bad faith. Hence, the right over the said name lies with the complainant.

 CONCLUSION

This online mode has made dispute resolution simple for the corporate and legal profession. It helps save a lot of time, money, manpower, etc. ODR covers all these loopholes and helps to solve disputes at a cheaper cost, in lesser time, with less lethargic procedures and in a more effective way. Legal professionals are benefiting from this method of dispute resolution to a great extent.

The scope of this method of dispute resolution is quite broad. There is a need for the respective regulators and government to invest more in developing this method of dispute resolution as it is not only beneficial to the legal professionals, but to the parties as well. This would also reduce the burden of traditional courts and would increase efficiency in delivering of judgments.

REFERENCES

  1. https://www.wipo.int/amc/en/domains/decisions/text/2018/d2018-1300.html
  2. http://arbitrationblog.kluwerarbitration.com/2018/03/29/online-dispute-resolution-future-alternative-dispute-resolution/?doing_wp_cron=1596378041.8874390125274658203125
  3. https://www.wipo.int/amc/en/domains/decisions/html/2000/d2000-1038.html
  4. https://www.wipo.int/amc/en/domains/decisions/text/2019/d2019-2356.html
  5. https://www.intechopen.com/books/digital-communication-management/online-dispute-resolution
  6. http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA2.htm.

[1] Deepak Verma, Online Dispute Resolution, Intech Open (19th September, 20 18), https://www.intechopen.com/books/digital-communication-management/online-dispute-resolution.

[2] See Id.

[3] Derric Yeoh, Is Online Dispute Resolution The Future of Alternative Dispute Resolution?, Kluwer Arb. Blog (29th March, 2018), http://arbitrationblog.kluwerarbitration.com/2018/03/29/online-dispute-resolution-future-alternative-dispute-resolution/?doing_wp_cron=1596378041.8874390125274658203125.

[4] See Id.

[5] See Id.

[6] Karnika Sawhney, Alternative Dispute Resolution to Online Dispute Resolution, ICA, http://www.icaindia.co.in/icanet/quterli/jan-march2002/ICA2.htm.

[7] See Id.

[8] Tata Motors Limited v. liu lei, (2019) Case No. D2019-2356.

[9] Tata Motors Limited v. liu lei, (2019) Case No. D2019-2356.

[10] Tata Sons Ltd. v. Edwin Antony, (2018)   Case No. D2018-1300.

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