Introduction
India has witnessed a growing shift from traditional litigation to methods of Alternate Dispute Resolution (ADR) in recent decades.The COVID-19 pandemic accelerated this trend, propelling the emergence of Online Dispute Resolution (ODR). Whether a response to the pandemic or a natural progression of ADR, this evolution requires examination. This article analyses ODR’s development within India’s legal framework and the judiciary’s response. It argues that despite its newness and lack of explicit legal recognition, ODR is finding acceptance within India’s legal system. This paper focuses particularly on the potential for e-arbitration.
Scope of Online Disputes Resolution in India
The Indian Arbitration Act doesn’t explicitly address whether arbitration proceedings can be conducted electronically through video conferencing or other online methods. This raises questions about the legal validity of agreements opting for online arbitration (e-arbitration) and the arbitral process itself.
- E-arbitration agreements
The legal foundation for electronic arbitration agreements is well-established. Section 7 of the Act allows for arbitration agreements to be formed through various communication methods, including electronic means, as long as a record of the agreement exists. This principle was affirmed by the Supreme Court in Shakti Bhog v. Kola Shipping[1], where they recognized that an arbitration agreement can be established through a signed document, letters, or electronic communication channels that provide a record of the agreement. Similarly, in Trimex International v. Vedanta Aluminium Ltd.[2], the Supreme Court reiterated the validity of arbitration agreements formed through electronic means like fax and email.
- E-service of notices, summons, pleadings etc.
The legal landscape acknowledges the possibility of serving summons electronically. In 2018, the Bombay High Court set a precedent by allowing service of summons via WhatsApp in a copyright infringement case. This decision came after repeated unsuccessful attempts to reach the defendants through traditional methods[3]. The court ultimately deemed the service valid for the purposes of Notice under a specific Civil Procedure Code rule, citing evidence that the message and attachment were delivered and opened on the recipient’s phone. This case, along with others like Tata Sons Limited &Ors. v. John Doe(s)[4], underscores the evolving approach to summons delivery, where electronic alternatives are increasingly recognized in appropriate circumstances.[5]
Recognizing the challenges posed by the pandemic and lockdowns, the Supreme Court issued an order in July 2020[6] allowing for the electronic service of legal documents, including notices, summons, and pleadings. This order permitted the use of email, fax, and even various messaging applications like WhatsApp, Telegram, and Signal. However, the court also mandated that whenever using instant messaging services, the sender must simultaneously send the document via email on the same date.
- E-Conduct of proceedings
Electronic Records
India’s legal framework supports the use of electronic communication and documentation in arbitration proceedings. Section 4[7] of the Information Technology Act (2000) acknowledges the legal validity of electronic records. Section 5[8] of the same Act recognizes electronic signatures as valid. This framework, by recognizing both written electronic text and electronic signatures, facilitates and validates the use of e-records filed with the arbitral tribunal. Additionally, Section 65B[9] of the Indian Evidence Act (1872) further reinforces the legal validity of electronic records.
Place of arbitration
Section 20(3) of the Act grants the arbitration tribunal flexibility in choosing the place for specific functions within the arbitration process. This includes witness or expert hearings, party meetings, or document/property inspections. The key caveat is that the chosen location must be mutually agreed upon by the parties and deemed appropriate by the tribunal. This provision, with its focus on agreement and suitability, opens the door for potentially conducting these activities in a digital space, provided all parties and the tribunal agree.
Procedure of arbitration
Section 18[10] of the Act outlines two key principles of due process: equal treatment of parties and full opportunity for each party to present their case. As long as these fundamental principles are upheld, the use of electronic procedures and tools for conducting oral hearings within the context of Online Dispute Resolution (ODR) is unlikely to impact the validity of e-arbitrations.
The initial stages of setting deadlines and defining key questions (framing issues) can be conducted through video conferencing. The arbitral tribunal then has the discretion to hold either oral hearings or rely solely on presented documentation for their decision-making. While the Act mandates hearings if requested by a party, the parties themselves can agree to forego them. However, the question of electronically recording evidence remains an unresolved issue.
Recording of electronic evidence
The Supreme Court of India, in State of Maharashtra v. Praful B. Desai (2017)[11], recognized that video conferencing allows parties to be present virtually, fulfilling the legal requirement that evidence be taken in the accused’s presence. This suggests potential grounds for using electronic recordings of evidence gathered through video conferencing in the context of e-arbitrations.
Building on the precedent set in Praful Desai, where the Supreme Court recognized electronic evidence and allowed video conferencing for recording evidence, the court issued guidelines in April 2020 for utilizing video conferencing in court proceedings during the pandemic.[12] However, these guidelines emphasize that video conferencing should primarily be used for hearing arguments during trials and appeals, and evidence recording through video conferencing requires the mutual consent of both parties.
While the Supreme Court guidelines mandate mutual consent for recording evidence, they have nevertheless provided a significant push towards electronic evidence recording. This is evident in the widespread use of various online platforms like Zoom, WhatsApp, and others by high courts across the country for handling urgent cases.[13] This trend is likely to continue in the context of arbitrations, as long as all due process requirements (outlined in Section 18 of the Act) are met. Additionally, the implementation of live transcription services could further enhance the process of recording virtual cross-examinations.
One critical requirement for enforcing domestic arbitration awards in India is the presence of a proper stamp. As per Section 35 of the Indian Stamp Act (1899), awards lacking a valid stamp cannot be enforced through courts. To address this challenge and facilitate the execution of electronic awards, initiatives like the Stockholding Corporation of India Limited (SHCIL) offering e-stamping services have emerged in specific states. Additionally, Maharashtra has implemented its own electronic stamping system, called the Electronic Secure Bank and Treasury Receipt (e-SBTR). These initiatives demonstrate India’s ongoing efforts to develop and refine mechanisms that support the implementation of Online Dispute Resolution (ODR).
ODR mechanism vis-à-vis SEBI
The financial well-being of a nation depends on its capital market, which channels direct financing to the corporate sector. India’s capital market, comprising equity, debt, and derivatives markets, has experienced significant growth in the past two decades, attributed to the establishment of SEBI in 1988 and its legislative backing in the SEBI Act of 1992.
Recognized globally for its performance, the Indian capital market faces challenges such as higher capital costs due to market volatility. Its future hinges on retail investor involvement, predominantly individuals and households lacking sophistication. The extent of their participation and the effectiveness of regulatory measures in protecting their interests will shape the market’s trajectory. To bolster investor grievance resolution, SEBI amended regulations to implement ODR for investors and intermediary clients, aiming to enhance market efficiency and safeguard investor interests.
The dispute resolution process within the Indian securities market underwent restructuring to ensure swift and efficient resolution. This was accomplished through a gazette notification dated July 3, 2023, which introduced the SEBI (Alternative Dispute Resolution Mechanism) (Amendment) Regulations 2023.[14]
The ODR mechanism’s scope has widened to encompass registered intermediaries and their investors, with the conciliation and arbitration process overseen by Market Infrastructure Institutions [MIIs]. This expansion, facilitated by ODR institutions, includes the adoption of hybrid dispute resolution proceedings approved by SEBI. Furthermore, SEBI has authorized the integration of SEBI Complaints Redress System [SCORES] with the ODR platform, providing investors across regulated entities an additional avenue for grievance redressal.[15]
The integration of ODR in securities market dispute resolution stands to revolutionize procedural aspects and timelines significantly. By harnessing digital technology and the internet, ODR facilitates efficient and accessible dispute settlement, reducing reliance on traditional, costly, and time-consuming legal processes. Parties can engage in resolution efforts regardless of geographical constraints, contributing to convenience, affordability, and impartiality. ODR’s potential to enhance accessibility and user experience suggests its suitability as a model for a globally inclusive and efficient conflict resolution framework.
Issues in implementation of E-arbitration in India
Challenges to Implementing Online Dispute Resolution (ODR) in India:
-
- Lack of legal clarity: The existing arbitration framework doesn’t explicitly address online arbitration, requiring physical documents and signatures, creating ambiguity regarding its legality.
- Security concerns: Data security and confidentiality are crucial for commercial arbitration, and doubts remain about ODR’s ability to prevent data breaches or unauthorized access, potentially undermining its attractiveness.
- Digital divide: Technology access and familiarity vary across India, with many individuals lacking the necessary equipment or comfort level with online platforms, hindering wider adoption.
- Technical limitations: Infrastructure limitations like unreliable internet connectivity, especially outside major cities, and bandwidth issues can disrupt the effectiveness and accessibility of ODR.
Lastly, Online Dispute Resolution (ODR) faces challenges in India despite potential cost benefits. Legal frameworks lack clarity, security concerns exist, and the digital divide hinders adoption. Infrastructure limitations and initial setup costs also pose hurdles. Overcoming these challenges is crucial for ODR’s success in India.
Solutions to the problems
Online Dispute Resolution (ODR) faces a legal hurdle in India due to the absence of explicit regulations. However, existing laws like the Information Technology Act (2000) recognize digital signatures, allowing parties and arbitrators to sign agreements and awards electronically. This suggests potential avenues for interpreting existing legal frameworks to support ODR, or even incorporating amendments enabling electronic submission of claims and defences.
Confidentiality and data privacy concerns are valid considerations for Online Dispute Resolution (ODR). While the 2019 amendment to the Act introduced data confidentiality obligations (Section 42A) for arbitrators and parties, it lacks provisions for witnesses, support staff, and doesn’t offer specific violation penalties.[16] However, it’s important to note that data security risks and confidentiality concerns exist in both physical and electronic arbitration settings. Placing the responsibility on both parties to uphold fairness and confidentiality during the arbitration process, regardless of its format, is crucial.
Concerns about witness tampering in ODR can be addressed using technology like wide-angle cameras. While digital literacy gaps exist in India, arbitration typically involves parties with internet access. Additionally, emphasis has been placed on harnessing technology to improve access to justice, as noted by Justice Chandrachud[17]. Solutions from the RDRP Guidance suggest establishing separate soundproofed rooms for participants to minimize external influences and ensure privacy during online proceedings.
Conclusion
India’s overburdened judicial system, with over 40 million pending cases, necessitates exploring alternative dispute resolution methods like online dispute resolution (ODR). ODR offers advantages over traditional litigation by being potentially faster, more accessible, and potentially more cost-effective. Studies have supported this potential, highlighting the ability of technology to expedite the process and reduce costs.
Examples like e-LokAdalats, which utilize technology like video calls for dispute resolution, demonstrate the potential of ODR to make the legal system more equitable and accessible. While challenges remain, embracing technology for ODR implementation is crucial, as Justice Chandrachud remarked, “the question today is not whether we should adopt technology, but how well do we adopt technology.”[18]
[1] Shakti Bhog v. Kola Shipping (2009) 2 SCC 134.
[2] Trimex International v Vedanta Aluminium Ltd (2010) 3 SCC 1.
[3] SBI Cards and Payments Services Pvt. Ltd. v. RohidasJadhav, (2018) SCC OnLineBom 1262.
[4] Tata Sons Limited &Ors. v. John Doe(s) &Ors., (2017) SCC OnLine Del 8335.
[5] SBI Cards and Payments Services Pvt. Ltd. v. RohidasJadhav, (2018) SCC OnLineBom 1262.
[6] Suo Motu Writ Petition (C) No. 3/2020.
[7] Information Technology Act 2000, s 4.
[8] Information Technology Act 2000, s 5.
[9] Indian Evidence Act 1872, s 65B.
[10] Arbitration and Conciliation Act, 1996, s 18.
[11] State of Maharashtra v. Praful B. Desai (2003) SCC Online SC 447.
[12] In Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic, Suo
Moto (Civil) Writ No. 5 of 2020, Order dated 6 April 2020.
[13] Sonal Kumar Singh and others, ’Covid-19 and E-Arbitrations: An India Perspective’, (Lexology, 30 July
2020), https://www.lexology.com/library/detail.aspx?g=40e5193a-22d0-411c-97e7-222dc434c285
[14] SEBI notification SEBI/LAD–NRO/GN/2023/137 dated 3 July 2023.
[15] Shruti Ranjan, Anurag Gupta, Pranvi Jain, ‘SEBI’s Online Dispute Resolution| reimagining investor protection & grievance redressal’ (Bar and Bench, 5 September 2023), https://www.barandbench.com/columns/sebis-online-dispute-resolution-reimagining-investor-protection-grievance-redressal.
[16] NitiAayog and others, Online Dispute Resolution Handbook, 14 April 2021.
[17] Santhini v. VijayaVenkatesh, (2018) 1 SCC 1.
[18] Draft Mediation Bill (2021), s 6.