Corona has caused hindrance in judicial settlement of cases as well as absolute growth of further legal disputes on account of lockdown other incidental claims. Thus it is time to further analyse the concept of Alternate Dispute Resolution within the light of the further developed concept of Online Dispute Resolution (ODR).
As the country gears up for Lockdown 2.0, businesses and individuals reel in anxiety and stress. India Inc plans a partial exit strategy but to jumpstart a stalled economy is an onerous task in itself. It is, therefore, a valid assumption that economic disruptions caused due to a nation-wide lockdown might give rise to disputes, twofold.
Closure of courts and tribunals to curb the spread of the virus will invariably delay justice to companies and individuals alike. Although the Supreme Court is hearing important cases via video conferencing, lower courts lack infrastructure to keep up with these advancements. Therefore, in such times, traditional reliance on litigation is a far from optimal way of dealing with conflict.
ADR in India
Desperate times need desperate measures. Fortunately, Alternate Dispute Resolution (ADR) is at last beginning to emerge as responses to conflict in its myriad forms and to the challenge of building a more peaceful world.
ADR mechanisms prescribed by the Civil Procedure Code under Sec. 89(1)–(2), include arbitration, mediation, conciliation, judicial settlement, judicial settlement through lok adalat (people's court). ADR being an informal process, provides quick, interim solutions to parties of a dispute thereby mitigating conflicts by large. The arbitral institutes can broker an agreement between the parties in 2-3 successive meetings. In comparison to this, the other dispute resolution methods would take several months, if not years.
At the outset, if time is on claimant's side, a well thought out, well- crafted demand with factual statements and even detailed legal analysis may help the client avoid the prolonged stress of litigation dispute escalation and yield an early influx of settlement funds. Some of the most compelling reasons for choosing ADR, among others, are high litigation expenses, time-consuming adjudication and most importantly, an appropriate method of carrying out dispute resolution whilst following the social distancing and other governmental norms amid the pandemic.
ODR and Legal issues
Started with trying to resolve disputes via email, it went on to incubate an online dispute resolution (ODR) platform, known as the Centre of ADR Excellence. This method of dispute resolution was made a reality by marrying ADR mechanisms with technology. Typically, an ADR meeting or conference can be called at a short notice and if both parties are in agreement to the arbitration rules, an arbiter is appointed and time-stamped intimations are sent via e-mails, WhatsApp messages and SMS. This platform facilitates communication via video calls and eliminates the need for face-to-face communication.
The question of its legality can be put to test by going through Section 19 of the Arbitration and Conciliation Act, 1996 which states that tribunal is not bound by provisions of CrPC and IEA and may decide upon the procedure to be followed in conduct of such proceedings thereby making online or live conduct well within the legal domain and no one can challenge such proceeding merely on the ground of being an online resolution proceeding.
International Commercial Arbitration rules which serves as a guideline to arbitration institutions around the globe and, have been adopted by the India Council of Arbitration, also mandate that Arbitration tribunals have the power to conduct proceeding via video conference, telephone or any such other means of communication as may be deemed fit. This transposed the concept of ADR towards a highly advanced and far more cost-effective method of Online Dispute Resolution (ODR). ODR also helps overcome jurisdictional issues, eliminate geographical barriers, automate administrative tasks, improve productivity of professionals, promote eco-friendly processes, and finally, deliver a quick, economical and effective solution to disputes. The need of use of modern technology in courts was emphasised by the RBI and the Supreme Court in the matter of Meters and Instruments Pvt. Ltd. and Anr. v. Kanchan Mehta while hearing a petition on expeditious settlement of cases especially those relating to business like Negotiable Instrument Act.
Limitation Period during COVID-19
The question of time bound proceeding is already answered by the Supreme Court vide order dated 23rd March, 2020 by freezing the limitation period from 15th March, 2020 until further orders. For instance, Section 29A of the Arbitration and Conciliation Act, 1996 stipulates passing of award within 12 month of commencement of proceeding, which may be extended by 6 months upon agreement of parties to the dispute. Thus, the SC order encompasses any such proceeding falling short of limitation on account of lockdown and still holds a chance to file suits.
The pandemic has engulfed over 100 countries and restoration of normalcy appears to be a distant dream in India. But unconventional times warrant unconventional solutions. Realizing this, RBI endorsements followed by the recent Supreme Court judgment provides a conducive testing ground for modern technologies in courtrooms. It is necessary that technologies be effectively implemented in regular course of business and move away from SC's "Urgent only" requirement for using video conferencing and delve into full swing application of online proceedings for all cases and promote ODR, wherever applicable. Therefore, the COVID-19 crisis has catapulted an archaic industry such as law to adopt technology at a never-seen-before pace and as believed by many is the way forward.
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