Naavi.org

Naavi.org was born when India stepped into being a Digital Society with the  passage of Information Technology Act 2000. Now after 15 years, we are standing on the threshold of another major transformation in India, this time in the Dispute Resolution process.

There is first an adoption of the Alternate Dispute Resolution (ADR) mechanism to overcome the litigation related delays. Then the ADR itself is getting ready to transform itself into Online Dispute resolution (ODR) mechanism.

This ADR adoption and then ADR to ODR transformation will engage the attention of thought leaders in the coming days. Just like paper based contracts migrated to digital contracts with ITA 2000, now the physical litigation society is taking a hop to an ADR society still in physical space and then a jump to the digital ODR society.

In between, the missing step is now being provided by Naavi.org to assist a smooth transformation of the dispute resolution mechanism from Court based litigation to Physical society ADR and then onto Digital Society ODR. In this process, Naavi.org will collaborate with established ADR institutions to bring about the adoption of ADR and then take over the responsibility for guiding the ADR transformation into ODR.

This should enable interested professionals to take up ADR first and then look at ODR as a professional career. Since Ujvala Consultants P Ltd, the parent company that owns Naavi.org has also co-promoted the ODR platform through odrglobal.in, professionals who are ready to take up ODR will have a ready platform to use their skills.

ODR Global also offers “Back Office Services” as an adjunct to its ODR services  small ADR firms and individual ADR professionals can take advantage of these back office services and transform themselves from ADR to ODR using the virtual ODR platform provided by ODRGLOBAL.IN

It is proposed that under the Cyber Law Compliance Center (CLCC), Naavi.org will develop an incubation forum for Professionals interested in ADR and ODR to prepare them for handling ADR/ODR for their clients.

For this purpose, an operational “Guide to ODR”  will also be developed and  made available on subscription basis to the members of the ADR2ODR Transformation Center at a nominal price.

Watch out for the details on this proposed transformation center and contribute your thoughts to make it useful to the community.

P.S: The Transformation Center would be called the “Global Forum of Virtual ODR Professionals “

Naavi

ODR Global is a venture promoted by Naavi for online dispute resolution (ODR), and is made available through www.odrglobal.in. It is interesting to note that UNCITRAL is working on a model law on ODR and appears to be close to finalization of the draft. In this context a review is presented here about what the UNCITRAL working group is considering and what ODR Global is proposing to do.

The working group of  United Nations Commission on International Trade law (UNCITRAL) working on Online Dispute Resolution (ODR) released a draft outcome document on 22^nd December 2015 reflecting elements and principles of ODR Process.  The working group is expected to meet between 29^th February 4^th March 2016 at New York to take the discussions further to standardise the legal aspects of ODR in international arbitrations.

When UNCITRAL Model law on E Commerce was released in 1996, India was one of the first set of countries which followed it up with the passage of the local law namely the Information Technology Act 2000 which changed the complete scenario of India in the digital perspective. Now in 2016, India has recently passed the Arbitration Amendment Act and appears to be ready before hand to implement the suggestions of UNCITRAL model law as being contemplated.

The report (A/CN.9/WG.III/w.P.140) lays emphasis on “Fairness”, “Transparency”, “Due Process” and “Accountability”. It also states that the process has to be simple, fast and efficient.

ODR Global follows a unique “Virtual ODR” process where all the participants to an Arbitration will attend a virtual meeting and discuss across a virtual table. The entire proceedings will be video recorded by the ODR Administrator referred to by ODR Global as the “Registrar” who will be present as passive observer during the meetings. His presence will be only to facilitate the meeting which will be run under the directions of the Arbitrator (referred to as the Neutral in the working group report to accommodate the mediator or conciliator also along with the arbitrator.).

The ADR process would be determined by the Arbitrator and the ODR Administrator will assist the Arbitrator in ensuring that due process is followed on the electronic platform. Documents will be exchanged in electronic form. Certain documents which are too detailed or which are outside the provisions of the law related to recognition of electronic documents, will be exchanged in paper form for confirmation, receipt of which will be taken on record in the virtual meeting. The process will be fast and ideal for the fast track arbitration that is suggested under the amended Arbitration Act. Since the video recording will be certified under Section 65B of Indian Evidence Act, it will be admissible as evidence under the law and there would be complete accountability for all parties.

The report recognizes the need to guide the arbitrators and train them so that due process would be maintained.  ODR Global being an intermediary, can act as a trusted third party to discharge this responsibility. In the case of a permanent arbitral institution using the services of ODR and deputing one of its members as Arbitrator, ODR Global can provide a supportive supervision of the session so that the due process is not vitiated by any of the parties.

The Techno Legal expertise that can be built in ODR Global will be an asset to the arbitral institutions.

ODR Global also ensures that there would be explicit and informed consent with the parties by obtaining separate agreements with them as terms of using the service and also providing demo training where necessary.

The report also recognizes the need for the ODR administrator to provide assistance at the time of pre-arbitral negotiation mainly for assisting the parties to agree on a arbitrator.

The UNCITRAL report suggests an additional role for the ODR Administrator to mediate and try to obtain negotiated settlement before the actual arbitration commences. ODR Global proposes to address this requirement through an e-Ombudsman facility optionally available to the parties at the pre arbitration stage.

The UNCITRAL report envisages a more intrusive role for the ODR Administrator than what ODR Global has presently provided. ODR Global has deliberately chosen a less intrusive role so that Arbitral institutions donot perceive ODR Global as a competition to their current ADR business. However, by appropriately defining the role and functions of the Registrar, the ODR Global process can be made exactly as what UNCITRAL working group envisages if it becomes mandatory.

The working group has provided flexibility to the ODR platform operator to decide on the details of technical aspects but has indicated placement of some information on the platform. ODR Global from its considered assessment of information risk, may adopt a slightly different method which is more secure and legally more robust.

The UNCITRAL model law might have been conceived with the ODR platform being an alternate Arbitral institution. ODR Global however does not consider this the ideal way of structuring the business and would restrict its role to more being an intermediary than an arbitral institution itself.

It is considered appropriate at least in the current status of the industry in India.

Accordingly, ODR Global would not draw up a detailed set of arbitration rule and leave it to the Arbitrator to decide on the procedure in conformity with the law.

However, in order to assist the small arbitral institutions and individual arbitrators, a “Model set of rules” may be made available as part of the educative information that ODR Global may maintain using the Cyber Law Compliance Center (CLCC) maintained under naavi.org. This model set of rules will address all the suggestions that the UNCITRAL working group is incorporating in its final report as “Rules of ODR”.

Naavi

Every entrepreneur or businessman starts with an optimistic outlook that everything will be going as per plan. He enters into number of contracts thinking that the other party will always do what he has agreed to do. He will presume that all customers will be happy and there will be no sales returns. But..life is not that simple. Murphy’s law states “If anything can go wrong, it will”. The same applies to business contracts and customer relations. Sometimes, if not often, contractors donot deliver, customers are unhappy and return the goods for no valid reason. The business has to be prepared for such eventualities.

Today, E Commerce companies like Flipkart or Myntra,  handle Customer dissatisfaction by being generous in accepting returns without raising any questions. Perhaps, they have the surplus fund to be generous. Traditional business has not found it convenient to be so generous because they consider that it simply is not possible. As regards Contractual disputes, whether it is the funded E Commerce company or the traditional business, disputes often arise may not be out of willful default but out of extraneous developments and differences in interpretations of performance parameters. Almost all companies have frequent differences with its own employees who leave disgruntled and keep a fight going.

Hence every business has to include in its business planning, the possibility of a legal dispute arising out of their operations and the risk that presents in terms of direct and indirect costs.

In Information Security management, we talk of Risks arising out of “Threats” overlapping with “Vulnerabilities” and a strategy for managing such risks with a structured approach which includes Risk Mitigation along with Risk Avoidance, Risk Transfer and Risk Absorption strategies. A similar approach is also required as regards the “Dispute Risk”.

Naavi has been advocating a structured approach to Cyber Law Compliance because it is one of the first steps in “Dispute Risk Mitigation”. Naavi has also been advocating “Cyber Insurance” which is one of the strategies to cover the “Dispute Risk Transfer” strategy. In continuing the efforts at devising strategies for “Dispute Risk Management” Naavi is also addressing better ways of managing disputes by promoting the concept of online dispute resolution through ODR Global.

ODR Global (www.odrglobal.in) is a service which enables any Institution or Individual engaged in Arbitration or Mediation or Conciliation to conduct the proceedings on the cloud. This would be cost effective and convenient. In many cases of disputes in the digital world it is the only way the disputing parties will come to the discussion table. Over and above the convenience and cost effectiveness, ODR Global with its tie up with Cyber Evidence Archival Center (www.ceac.in) provides an evidence of the proceedings in the form of a Section 65B (IEA) certified electronic document supporting further challenges in Courts  with admissible evidence.

It would be interesting to see how the market reacts to this unique proposition. Will the legal community or more appropriately the Arbitration community (which mostly consists of retired Judges) be able to appreciate the technical nuances involved in making use of the ODR system? or prefer the old way of meeting in a conference room and discuss face to face? , Will the Consumers of Arbitration which include tech savvy business men force their arbitrators/mediators/conciliators to adopt online methods instead of the traditional systems?.. only time will tell.

Naavi is looking forward to progressive Arbitral Institutions and educational institutions to start using ODR on the platform of ODR Global so that others will follow suit.

Another pertinent question to raise is “What should be done to make the ADR community take up to ODR? .. Any views?

Naavi