UNCITRAl Model law on ODR and ODR Global

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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 22nd December 2015 reflecting elements and principles of ODR Process.  The working group is expected to meet between 29th February 4th 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

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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