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ONLINE DISPUTE RESOLUTION
A CASE STUDY BASED EXAMINATION UNDER INDIAN ARBITRATION LAW
- Devika Singh1
Abstract: ODR or online dispute resolution is increasingly a necessary face of ADR andnot a separate form. It is also not a new development.In this world of instant
communication, disputes require instant redressal which traditional modes of dispute
resolution are unable to proffer.In todays rapidly paced world of science and technology,
it is quite common to witness technological advances occurring so fast that the law is
hard pressed to keep up. A similar situation has arisen with ODR. The paper discusses,
on the basis of a case study, whether ODR can be fully embraced within the framework
of the Indian law on arbitration and if not, identifies potential obstacles and suggests
practical solutions. After reflection and it is ascertained that the majority of the issues canbe resolved merely by deeming a juridical seat or place for the virtual arbitration. Also,
ODR can be conducted in an impure form to accommodate present-day formal
requirements by rendering the awards in writing with the signature (or digital signatures)
of the arbitrators. Upon analysis, it is evident that only minor adjustments are needed for
Indian law to fully embrace ODR as a preferred mode of arbitration. There is already a
very positive trend towards embracing all facets of ODR in India and it is evident that
this trend will only strengthen with passing time.
A. INTRODUCTION
Today, the new buzzword in the arena of alternate dispute resolution or ADR is ODR
Online Dispute Resolution. Sometimes called a form of ADR, it may be more accurate
to say that ODR is increasingly a necessary face of ADR and not a separate form. ODR
is not a new development. It has been a matter of growing interest since 1997 when
Jasna Arsic wrote one of the seminal papers on international commercial arbitration on
the internet.2
As society become increasingly techno-savvy, jurisdictions and boundaries melt for trade
and commerce and people all around the world congress on the internet sans distance,
1Advocate, Bar Council of Delhi and Solicitor, England and Wales.
2 J. Arsic, International Commercial Arbitration on the Internet: Has the Future Come Too Early? (1997) 14 J. IntlArb. 209.
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such a development was bound to happen. In this world of instant communication,
disputes require instant redressal which traditional modes of dispute resolution are
unable to proffer.Traditional modes are also ill-equipped for cutting across strongly held
and honoured legal and jurisdictional boundaries. It has oft been commented that
cyberspace with its new array of technologically possible relationships and contractualfreedom is a challenge to international commercial arbitration.3
Despite the overwhelming concept of freedom that the internet promises, cyber
commerce has necessitated that the internet reengage and reaffirm the constant need for
control or what Lawrence Lessig4 famously termed regulability. In his seminal work, he
commented, The invisible hand of cyberspace is building an architecture that is quite the opposite of
what it was at cyberspaces birth. The invisible hand, through commerce, is constructing an architecture
that perfects control an architecture that makes possible highly efficient regulation.5
In a manner, ODR is merely a facet of that regulability and though not per se the
architecture that Lawrence Lessig envisaged, it does brush shoulders with the tools of
code. It is not a product of government or statute but of commerce.
In todays rapidly paced world of science and technology, it is quite common to witness
technological advances occurring so fast that the law is hard pressed to keep up. A
similar situation has arisen with ODR. The purpose of this paper is to discuss, on thebasis of a case study, whether technological innovations (or commercial innovations)
such as ODR can be fully embraced within the framework of the Indian law on
arbitration and if not, identify the loose threads that need tidying. This is particularly
useful for parties that wish to resolve their existing or future disputes through ODR
given its advantages over traditional dispute resolution such as litigation or even ADR in
terms of cost, efficiency and speed.
3 K. Lynch, The Forces of Economic Globalization: Challenges to the Regime of International Commercial Arbitration(The Hague: Kluwer Law International, 2003) at 345.4 A fellow at the Wissenschaftskolleg zu Berlin 1999-2000, was previously a professor at the Harvard LawSchool and a fellow at the Berkman Centre for Internet and Society.5 Lawrence Lessig, Code and other Laws of Cyberspace, 1999 Ed., Basic Books.
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B. ONLINE OR OFFLINE DISPUTES DEFINING ODR
At times, the best strategy towards understanding is one of exclusion. Hence, as a
starting point it is necessary to draw out the scope of this paper by clarifying to what isand is not included in the definition of ODR.
Often, in traditional dispute resolution, arbitrators may accept their roles through an
exchange of emails, or may, during the course of arbitration, conduct proceedings by
electronic means in online settings. Video-conferencing has become quite common and
several international arbitrators prefer to email awards for the sake of convenience and
cost. It is best to clarify at the initial juncture that any isolated online processes and
procedures applied in the course of traditional arbitration is not included within theambit of ODR for the purpose of this paper.
Pedagogically, online dispute resolution has developed two avatars. The first is online
dispute resolution for online disputes and the second is online dispute resolution for
offline disputes. In the first avatar, the source of the dispute may be an electronic
contract drawn between parties engaging in cyber commerce, wherein the parties decide
to resolve the disputethrough the systematic and continued use of online techniques or
submit it for resolution to an online forum.In the second avatar, the source of the dispute is offline i.e., a corporeal written contract,
drawn by parties outside the cyber world, wherein the parties decide to resolve their
disputes through the systematic and continued use of online techniques or submit the
dispute to an online forum for resolution.
Despite different sources, both avatars culminate at a singular form or forum which is
online. For the purpose of this paper, both avatars fall within the scope ofODR. Hence,
this paper proceeds on this broad definition of ODR.
Regardless of the virtual nature of ODR, the fact of the matter is that eventually the
parties need to interact with the real world. Such interaction may or may not arise at an
injunctive stage but it would definitely apply at the enforcement stage. Through the
following case study, this paper will examine the acceptance of ODR under Indian law.
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C. ODR IN CONTEXT A CASE STUDY
An Indian company - Inditech purchases a bulk order of books from an online
sitewww.booksandmore.com hosted by a French company Francotech. Thepurchase is done online through the websites payment portal which is hosted on a
separate server in Hong Kong. During the course of the purchase, Inditech checks a
box on the main payment page that indicates that by checking this box it agrees to accept
all the terms and conditions of purchase. Upon delivery in India, Inditech decides that
the order is not as per its requirements. It therefore takes action on Francot echs
payment portal as a result of which it is able to withhold fifty percent of the payment due
to Francotech. Francotech raises a claim against Inditech and Inditech raises a counter
claim against Francotech. The websites terms and conditions state that all disputes willbe settled by arbitration by a sole arbitrator at www.virtualarbitration.com . This
website is hosted by a server in England.An online arbitration award is rendered in
favour of Francotech and transmitted to the parties through email (Virtual Award).
Francotech initiates enforcement proceedings against Inditech in the Delhi High Court.
D. EXAMINATION
The law relating to domestic arbitration, international commercial arbitration6
andenforcement of foreign arbitral awards in India is the Arbitration and Conciliation Act,
1996 (1996 Act). Hence, in order to be enforced, the Virtual Award will need to satisfy
the requirements and conditions of the 1996 Act.
The 1996 Act has two parts relevant for the purposes of this examination7. Part I is
stated to apply where the place of arbitration is in India. This provision has been the
subject of relatively recent controversy in the Supreme Court of India (SC). In Bhatia
International v. Bulk Trading8
, the SC had held that in the absence of the word only insection 2(2) of the 1996 Act, Part I will apply to arbitrations held outside India as long as
Indian law governed the contract. The SC concluded that Part I will apply to all
6 Those arbitrations where at least one part is a foreign national is referred to as an internationalcommercial arbitration.7 Part I is entitled Arbitration and consists of 10 chapters containing sections 2 to 43. Part II pertains toEnforcement of foreign awards and Part III deals with Conciliation.8 (2002) 4 SCC 105.
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arbitrations where the seat of arbitration is outside India, unless the parties agree to
exclude provisions of Part I. This view was again reiterated by the SC in Venture Global
Engineering v. Satyam Computer Services9. Both these judgments have garnered much
criticism which the Law Commission of India (LCI) has, in a recent consultation
paper, attempted to put to rest by the recommendation that section 2(2) be amended toclarify that Part I would apply only where the place of arbitration is India. Hence, there
would be no application in international commercial arbitrations where the place of
arbitration is outside India.
In the case study, the place of arbitration is in virtual reality. It cannot be clothed in any
jurisdictional garb. Therefore, the already existing ambiguity on the application of Part I
in traditional arbitration is accentuated in this case. With an online dispute resolution
mechanism, it is difficult to identify the actual seat of arbitration. The parties are fromIndia and France, the payment portal is hosted in Hong Kong and the virtual arbitration
website is hosted in England. The place of arbitration would clearly have shifted various
jurisdictions during the arbitration proceedings. Inditech and Francotech may have also
involuntarily chosen a seat of arbitration that is deemed in the terms and conditions of
the www.virtualarbitration.com. However, it is an acceptable assumption that the place
of arbitration cannot be India.
Yet, in the presence of precedent and the absence of clarity, the first challenge of ODRin India is clear identification of the place or seat of arbitration. Parties wishing to submit
their disputes to ODR should ascertain that the place of arbitration is deemed to be a
specific jurisdiction either by the rules governing the online institution to which they
submit their dispute or, in case of an adhoc arbitration, by agreement of the parties
themselves. This would go a long way in ensuring the success of ODR.
Merely for the sake of furtherance of this paper, it is being assumed that Part I of the
1996 Act does not apply in the instant case as the place of arbitration is not India. TheVirtual Award is therefore a foreign award10 to which Part II of the 1996 Act would
9 (2008) 4 SCC 190.10 Section 44, 1996 Act, Definition.- In this Chapter, unless the context otherwise requires, foreignaward means an arbitral award on differences between persons arising out of legal relationships, whethercontractual or not, considered as commercial under the law in force in India, made on or after the 11thday of October, 1960- (a) in pursuance of an agreement in writing for arbitration to which theConvention set forth in the First Schedule applies, and (b) in one of such territories as the Central
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apply. Under Part II, the legitimacy of the Virtual Award would be questioned on three
fronts in court. First the validity of the arbitration agreement between Inditech and
Francotech; second the procedural integrity of the arbitrator and the arbitration at
www.virtualarbitration.com; and third the completeness and finality of the arbitration
award from the purview of enforcement.
D.1 VALIDITY OF THE ARBITRATION AGREEMENT
The most often quoted challenge of ODR is the traditional in writing
requirement. Today, arbitration agreements are increasingly being concluded
through the means of electronic transmission instead of the traditional paper and
pen with the participating parties signatures. Yet, the single most important
document that is the basis of international commercial arbitration theConvention on the Recognition and Enforcement of Foreign Arbitral Awards
(NYC) was written and adopted well before the age of the internet. Under
Indian law, Section 44 of the 1996 Act requires that a foreign award should be in
pursuance of an agreement in writing for arbitration to which the NYCapplies.
Not only does Section 44 itself refer to an agreement in writing but so does the
NYC at Article II11. Both the 1996 Act and the NYC are representative of a
general practice. Article 7 (2) of the UNCITRAL Model law also indicates that
the arbitration agreement will be in writing. Even the national arbitration law ofone of the parties of the case study, Francotech, provides that, to be valid, an
arbitration clause shall be in writing and included in the contract or in the
document to which it refers.12
The central question is when Inditech and Francotech entered into an agreement
of arbitration in the manner demonstrated in the case study did the exchange
Government, being satisfied that reciprocal provisions have been made may, by notification in theOfficial Gazette, declare to be territories to which the said Convention applies.11 Article II, NYC 1.Each Contracting State shall recognise an agreement in writing under which theparties undertaking to submit to arbitration all orany differences which have arisen or which may arisebetween them in respect of defined legal relationship, whether contractual or not, concerning a subject-matter capable of settlement by arbitration.2. The term agreement in writing shall include an arbitralclause in a contract or an arbitration agreement, signed by the parties or contained in an exchange ofletters or telegrams.12 Article 1443 of the French Code of Civil Procedure.
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satisfy the core requirements of the NYC and the 1996 Act? Prima facie, the
answer is in the negative, simply because it was not in writing.
However, before and consequent to the development of several laws governing
e-commerce, several judicial pronouncements the world over have addressed theparadox that there is no place in major d ocuments of international arbitration for
the currently most popular means of data transmission. As a result of this it has
been convincingly argued and accepted that an exchange of email messages
containing an arbitration clause satisfies the formal requirements of Article II (2)
of the NYC, because an exchange of emails can be equated to an exchange of
telegrams13.
Still, on the face of it, Inditech merely checked a box indicating its assent to theterms and conditions of Francotechs website. Nor was there a signature put to a
contract and neither was there an exchange of letters or telegrams or emails. In
this case, the validity of the arbitration agreement can be based on the functional
similarity in the transmission of data that occurred when the box was checked
which can be likened to an exchange of emails14. The functional equivalent
approach was propounded in the UNCITRAL Model Law on E-commerce15
and is based on how electronic techniques can be compared and utilised as the
functional equivalents of traditional paper-based requirements.
When the offer contained in the Francotech website was viewed by Inditech, the
bits comprising the offer, originally stored on the website server, were
transmitted through a network to Inditechs computer. When Inditech accepted
the offer by checking the box, the bit stream comprising the offer and resident in
Inditechs computer was modified by Inditech and then that modified version
13 Supra Note 1 at 216. See also R. Hill, On-line Arbitration: Issues and Solutions, (1999) 15 Arb. Intl.199, available also online: 14 See R. Hill at Note 12.15UNCITRAL Model Law on Electronic Commerce with Guide to Enactment . See also Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 oncertain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive onelectronic commerce), published in Official Journal of the European Communities dated 17.7.2000, L178/1 http://europa.eu.int/eur-lex/pri/en/oj/dat/2000/l_178/l_17820000717en00010016.pdf whichrequires member states to do away with formal obstacles in electronic contracting..
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was transmitted back to Francotechs website server. Thus there took place an
exchange of data or electronic transmissions which is comparable to the
exchange of documents envisaged both under the NYC and the 1996 Act.
Consequently, it can be concluded that a valid arbitration agreement was entered
into.
Indian law has accepted such similarities and thus the validity of such
transactions through enactment of the Information Technology Act, 2000 (IT
Act.The IT Act has enacted to facilitate and encourage e-commerce by
recognizing electronic records and digital signatures. Section 4 of the IT Act
states that a requirement of any law for information or matter to be in written,
printed or typewritten form shall be deemed to have been satisfied if such
information or matter is rendered or made available in an electronic form and isaccessible so as to be re-usable for a subsequent reference. Section 4 of the IT
Act recognizes digital signatures and provides that the requirement of any law for
authentication by a persons signature shall be deemed to have been satisfied if
such authentication is done by means of a digital signature.
Having said that, even in the best of cases, agreements entered in certain online
settings are open to questioning. Several concerns have always been associated
with the quality of a parties consent given online. In the context of arbitrationagreements, valid consent has always been of fundamental importance and this
has lead to the emphasis on the in-writing requirement. Formalities such as
writing and signature are based on the need for some physical evidence or
authentication from the person who has given up his right to litigate in national
courts. Written evidence is regarded as essential to ascertain such an intention16.
When a single click of the mouse suffices as acceptance of an arbitration clause,
the law views it with a lack of trust as to whether such a minor act is a reflectionof a partys fully informed consent. The problem is exacerbated, when the
arbitration clause is tucked away in a range of general terms and conditions.
16 H. Yu & M. Nasir, Can Online Arbitration Exist Within the Traditional Arbitration Framework? (2003) 20J. Intl Arb. 455 at 458.
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Parties resorting to ODR or forums offering ODR can overcome such issues of
trust by the presence of a clear and conspicuous reference to an arbitration
clause. Along with this, the website can even offer to automatically save a copy of
the agreement on the computer of the acceptor. This would be a sufficient record
of the agreement.Such practical steps would greatly assist the courts in India,which have already indicated a very positive outlook towards electronic
techniques supplanting and supplementing traditional normsas has been
elaborated on in the following passages, in upholding ODR.
D.2 PROCEDURAL INTEGRITY
Issues of procedural integrity arise on two counts in ODR. The first is on usage
of electronic/cyber techniques in the course of arbitral proceedings.
In the case study, all arbitral proceedings were conducted online and hence
through such techniques. Transmission of notice of arbitration, notice of
appointment of arbitrator, exchange of documents, counters and rejoinders,
admission of evidence and other similar acts occurred in electronic form through
instantaneous transmission over the internet. In the absence of physical meetings
between the arbitrator, Inditech and Francotech, diverse electronic exchanges17
like virtual conferencing would have simulated and fulfilled traditional needs ofan arbitration.
In India, the e-justice system has been quite robust and there is an increasing
judicial recognition of information technology and electronic techniques
supplanting traditional legal requirements. For example, in 1999, the SC
construed the words notice in writing in section 138 of the Negotiable
Instruments Act to also include a notice by fax18. It requires not great stretch of
imagination to extend this construction to include notice by email also. In 2003,in the case of State of Maharashtra v Dr. Praful B Desai19, the SC recognized
evidence by way of electronic records and also recording and production of
17 O. Cachard, International Commercial Arbitration: Electronic Arbitration (New York: United NationsConference on Trade and Development, 2003),18M/s SIL Import,USA v M/s Exim Aides Silk Exporter, AIR 1999 SC 1609.19 2003 (3) SCALE 554.
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evidence by way of video-conferencing. A similar view on video-conferencing vis
a visphysical presence had been taken by the SC in the case ofBasavaraj R Patil v
State of Karnataka20 also.
Such judgments, though not directly in the context of ODR, evidence thewillingness of Indian courts to embrace technological advances. It would not be
averse to say that just like the encouragement given to ADR by Indian courts,
ODR too would be encouraged.
Despite such positive judgments, the question that still remains is whether such
techniques have any negative impact on the procedural integrity of arbitration in
the eyes of the law. The answer lies in two words party autonomy 21. The
principle of party autonomy or procedural autonomy is a fundamental principle
of arbitration law and is globally recognized and adhered to. In 2002, the SC hadruled favourably for technology and party autonomy and observed in context of
an offline arbitration that when an effective consultation can be achieved by resort to
electronic media and remote conferencing, it is not necessary that the two persons required to act
in consultation with each other must necessarily sit together at one place unless it is the
requirement of the law or of the ruling contract between the parties.22
It is recognized under the 1996 Act in section 19(2) which states that parties are
free to agree on the procedure to be followed by the arbitral tribunal inconducting its proceedings. In India, party autonomy is subjected only to two
caveats that the parties are treated with equality and that each party is given a
full opportunity to present its case 23. Hence, it can be concluded that as long as
the two caveats are satisfied, it is possible to adapt the entire procedure to the
virtual world under Indian law.
However, as can be seen even in Indian law, party autonomy cannot prevail over
or undermine the mandatory provisions of the law that governs the arbitration
20 (2000) 8 SCC 74021 J. Hrnle, Online Dispute Resolution: More than the Emperors New Clothes in E. Katsh & D.Choi, eds., Online Dispute Resolution (ODR): Technology as the Fourth Party. Papers and Proceedings of the 2003UnitedNations Forum on ODR (2003) , ; See also supraNote 15 at 465.22Grid Corporation of Orissa Ltd. v AES Corporation, 2002 AIR (SC) 3435.23 Section 18, 1996 Act.
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procedure. Hence, identifying the law that governs the arbitration procedure of a
virtual arbitration gains importance.
As discussed above, in the case study, the seat or place of arbitration is virtual
and not physical. Consequently, the country whose law would govern the virtualarbitration proceedings is unidentifiable. While the final solution to this problem
is delocalization of arbitration, the current framework of international
commercial arbitration makes delocalization very difficult and impractical.
International commercial arbitration is by definition a cross border activity and
every state is highly protective of its borders.
In such a situation, to maintain equity and fair mindedness, the virtual arbitration
proceedings would have to satisfy mandatory procedural elements of French,Indian, Cantonese and English law since all four jurisdictions are involved in the
problem! This is hardly reasonable or efficient. Moreover, the Delhi High Court
would be hard pressed during enforcement and in all likelihood the burden of
satisfaction would be too great for the award to be successfully enforced.
Again, such problems in ODR can be overcome by deeming, at the outset, the
seat or place of arbitration. The law of the place would automatically govern the
arbitration procedure thus providing certainty and finiteness. In case the partieswish to have a different law of procedure from the seat, this can be specified in
the arbitration agreement. There is a well established trend to support such
choices even in traditional arbitration and in ODR making such a choice may be
more of a necessity than a convenience.
While the above suggested device is suitable in an adhoc virtual arbitration, an
institutional arbitration presents its own set of complexities. If parties agree on
institutional arbitrational, the institutions rules would prevail and may conflictwith the parties intent to conduct arbitration online. In such a case, lawyers
would need to advice their clients to explicitly agree, in the arbitration agreement
itself, to override any institutional rules that may conflict with their desire to
conduct an online arbitration. Gradually, as ODR causes more and more
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arbitration institutions to reword their rules to accommodate online proceedings,
such conflicts are bound to disappear 24.
On the second count, issues of procedural integrity arise in the context of the
virtual award. The central question here is whether law supports an arbitral awardin its virtual form or does it require that it in writing or signed or rendered in any
other specified manner?
The NYC itself does not state that an arbitral award needs to be in writing or
signed. However, Part I of the 1996 Act requires that an arbitral award be in
writing and be signed by all the arbitrators under section 31. Once the arbitral
award is made, the provision also requires that a signed copy be delivered to
every party. Clearly, in the case of domestic arbitration (to which Part I applies),the desire to conduct a pure ODR would be defeated at this stage by the limited
provisions of the 1996 Act. While sections 4 and 5 of the IT Act may well be the
solution, in the absence of any case laws on this issue, it may be prudent to be
conservative. Hence, at least in Indian domestic arbitrations it would be better
for arbitrators of ODR forums to comply with the requirements of section 31
when rendering an arbitral award.
The case study however relates to Part II of the 1996 Act. Part II in turn refers tothe NYC which, as clarified above, has no provisions regulating the form or
content of an arbitral award. However, Article IV of the NYC refers to the
production of a duly authenticated original award by the party seeking
recognition or enforcement of the award. Consequently, section 47 of the 1996
Act also states that,
The party applying for the enforcement of a foreign award shall, at the
time of the application, produce before the court -(a) the original award or a copy thereof, duly authenticated in the manner
required by the law of the country in which it was made;
(b) the original agreement for arbitration or a duly certified copy thereof;
and
24 M. Schellekens, Online Arbitration and E-commerce(2002) 9 Electronic Communication Law Review 113.
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(c) such evidence as may be necessary to prove that the award is a foreign
award.
In the case study, arbitration has taken place online on the website
www.virtualarbitration.com. The arbitral award has been transmitted to both theparties by email. There is no such thing as an original or copies of the Virtual
Award since it is an electronic file and electronic files are infinitely reproducible.
So how will ODR overcome this obstacle?
Clearly, the requirement of an original or a duly authenticated copy under both
the NYC and the 1996 Act is as a measure of the veracity and security of the
arbitral award and is a method of confirmation not only of the contents of th e
arbitral award but also the identity of the arbitrators rendering it. Following theprinciple of functional equivalence, such objectives can be achieved in ODR by
requiring arbitrators to apply their digital signatures to the awards. A flexible
interpretation of the NYC and of the 1996 Act would surely include such secure
electronic documents to be the functional equivalent of the original. Legal
trends on electronic commerce would undoubtedly aid such positive
interpretations by Indian courts. However, practical problems of guaranteeing
integrity and attribution to the arbitrators would remain when submitting
electronic awards as paper documents with the registry. Similar issues would alsoarise for fulfilling the requirement of submitting the original agreement of
arbitration.
Even obtaining a duly authenticated copy of the Virtual Award would prove to
be a problem. Firstly because, there are limited authentication services in India
that can authenticate a digital signature and secondly because the authentication is
to happen in a manner required by the law of the country in which the award is
made and as we have already ascertained, the Virtual Award has no situs. In suchan event, which countrys law would apply for the purposes of authentication is
an unresolved grey area not only in the law but also in our case study. This once
again emphasizes the importance of deeming a place or seat for the ODR.
Even more so when the third requirement of section 47 is the submission of
evidence that proves that the Virtual Award is a foreign award. Usually when the
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arbitral award states that it is made in a place other than India, such evidence is
sufficient to satisfy this requirement.
D.3 COMPLETENESS AND FINALITY OF THE VIRTUAL AWARD
Eventually, as is the case in most ODR, the Virtual Award of the case study
passes the cyber realm and is put to test in the physical world of the Delhi High
Court for enforcement. This is an inevitability of ODR and the sole reason why
delocalization is unable to succeed in the territorial world. Though Inditech and
Francotech or www.virtualarbitration.com may achieve delocalization in ODR to
a limited extent by deeming the seat of the virtual arbitration, this is not in
effect delocalization but merely a manner of re-establishing a form of territoriality
over the Virtual Award.
Notwithstanding theory, practically, the necessity for deeming a juridical seat
for the arbitration is once again evident from Article V(1)(d) of the NYC which
specifies the grounds on which enforcement of an award may be refused, one of
the grounds being if the arbitral procedure was not in accordance with the agreement of the
parties, or, failing such agreement, was not in accordance with the law of the country where the
arbitration took place. This ground is replicated in the 1996 Act at section 48(1)(a).
Similar issues are reagitated by section 48 (1)(d) and (e) which state (d) thecomposition of the arbitral authority or the arbitral procedure was not in accordance with the
agreement of the parties, or,failing such agreement, was not in accordance with the law of the
country where the arbitration took place ; or(e) the award has not yet become binding on the
parties, or has been set aside or suspended by a competent authority of thecountry in which, or
under the law of which, that award was made.
E. CONCLUSION
There is no doubt that ODR shall succeed for the same reasons that e -commerce has. It
is convenient, cost effective and fast. It also ensures flexibility and freedom to the parties
and the arbitrators. However like e-commerce, ODR too is marked by the same pitfalls
predominantly, conservativeness to change and a marked lack of trust by law and society.
Also, just like e-commerce, ODR cannot be completely free of the tactile world and it is
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the lack of clarity on its integration with traditional mores that has seeded the doubts
slowing its permeation and usage.
It has been the endeavour of this paper to show the potential obstacles that may arise
when pursuing dispute resolution through ODR. The majority of the issues can beresolved merely by deeming a juridical seat or place for the virtual arbitration. Also,
ODR can be conducted in a impure form to accommodate present-day formal
requirements by rendering the awards in writing with the signature (or digital signatures)
of the arbitrators.
Upon analysis, it is evident that only minor adjustments are needed for Indian law to
fully embrace ODR as a preferred mode of arbitration. There is already a very positive
trend towards embracing all facets of ODR in India and it is evident that this trend willonly strengthen with passing time.
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