INSTITUTIONAL ARBITRATION PROCEEDINGS VIA ODR IN THE COVID-19 CONTEXT

Image Source : International Institute for Sustainable Development

This article has been authored by Tamanna Gupta, a fourth-year student at RGNUL, Punjab.

Introduction

The onset of the COVID-19 (Coronavirus Disease) pandemic has led to several monumental changes worldwide. The Arbitration community, especially institutional arbitration centers, are still grappling with the repercussions of the shutdown of various seats of dispute resolution centers. The Institutional arbitration community is not alone in adapting to the circumstances created by shifting online. Several top arbitration institutes have made a swift transition from traditional methods to Online Dispute Resolution (ODR), in order to assuage the losses due to the pandemic.

This article analyzes the shift to ODR, the legality of such a move in light of longstanding concerns, such as privacy, security, etc., and the measures taken by various arbitral institutions to further the motives of ODR. The article argues that ODR as a method of dispute resolution is here to stay, and will continue to be adopted even in the post-pandemic scenario.

Joint Statement Issued by International Arbitral Institutions

A statement was issued by 13 International Arbitral Institutions, including International Court of Arbitration (ICC), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC) etc. The statement majorly addressed the concerns raised by stakeholders such as parties to the disputes, arbitrators etc. in light of the pandemic. The Institutions reiterated their support towards continuation of arbitral proceedings in order to ensure timely justice to parties, & re-continuation of cases that were stalled due to the pandemic.

The institutions also called for increased commitment & collaboration between various arbitral institutions during the pandemic, also adding that “digital technologies” must be used as much as possible. While most of the proclamations made in the statement can be construed as generalized in nature, the encouragement provided by major arbitral institutions to digitalization of dispute resolution processes is noteworthy. This statement further paved the way for ODR in the COVID-19 context.

Legislative Gamut: Online Dispute Resolution

In the Indian Context, The Arbitration & Conciliation (Amendment) Act, 2019 governs the domain of arbitration. However, there is no specific provision relating to Online Dispute Resolution (ODR) in the Act. Regardless, several provisions of many statutes can be construed in a manner for furthering the case for ODR in India. Section 89 of the Civil Procedure Code (1908) states that any dispute which is sub-judice can be referred for resolution through various ADR methods. Order 10 Rule 1(A) of the Civil Procedure Code (1908) further states that parties concerned can choose any ADR method to resolve the dispute in question.

In the International Context, each arbitral institution has its own set of rules & regulations. However, most follow the rules laid down in United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, and most arbitral institutions work in consonance with the guidelines laid down under UNCITRAL Rules. The UNCITRAL, in its 46th Session, held in 2013, adopted the Rules on Transparency in Treaty Based Investor State Arbitration, which included clauses on electronic dissemination. However, rules specific to conduction of ODR are yet to be formulated, either nationally or internationally.

The Shift from Institutional ADR to ODR

Marking the initial phase of the lockdown, most centers for institutional arbitration remained shut, with employees from major institutes such as International Chamber of Commerce (ICC), etc. being shifted to remote working arrangements. However, even during the lockdown, some institutes kept functioning on a limited scale such as The Cairo Regional Centre for International Commercial Arbitration (CRCICA) etc.

Furthermore, most institutions have made provisions for filing of notice of arbitration proceedings electronically, coupled with continued utilization of platforms such as Skype, Zoom, Google, FaceTime, etc., for conducting proceedings. In order to address potential security concerns that may arise due to the usage of unverified platforms, the Singapore International Arbitration Centre (SIAC) collaborated with the Maxwell Chambers to create their own virtual platform to conduct arbitration proceedings, which ensures enhanced safety to the parties, amongst other formidable features. Institutes such as Stockholm Chamber of Commerce (SCC) offered free usage of their digital platform for conducting arbitration proceedings during the COVID-19 period, even for ad-hoc arbitration proceedings.

In order to address potential security concerns that might arise due to the sudden increase in proceedings being conducted online, several arbitral institutes have taken steps in order to address the longstanding issue of privacy & security. The International Chamber of Commerce (ICC) released a note categorically stating all possible measures that can be taken by parties in order to minimize security risks due to online proceedings. The International Chamber of Commerce (ICC), further collaborated with other organizations, recently releasing a “Protocol in Cyber-Security in Arbitration”, which lays down suggestions for adherence and compliance.

ODR in the Indian Context

While there are no specific guidelines relating to ODR in India, developments for the furtherance of ODR as a method of dispute resolution have been made, especially in the past decade. In May 2019, a high-level committee constituted by the Reserve Bank of India (RBI) submitted a report on 'Deepening of Digital Payments' in India and was of the view that payment systems should move towards utilizing a machine driven, Online Dispute Resolution (ODR) system to handle complaints expeditiously.

Furthermore, on June 6, 2020, NITI Aayog in partnership with Agami and Omidyar Network India hosted the first ever key stakeholder meeting to advance Online Dispute Resolution (ODR) in India. Participants involved senior judges of the Supreme Court, secretaries from Government ministries, industry leaders, legal practitioners, general counsels of leading enterprises, etc. The purpose of the meeting was to explore Online Dispute Resolution to contain and resolve disputes, particularly small and medium value disputes, before they enter formal court processes as a way to enhance access to justice and ease of doing business, by seeing dispute resolution as being one of the key facets to revival of the economy post the pandemic crisis.

Recently, the Supreme Court of India in the case of Meters and Instruments Private Limited and anr. v. Kanchan Mehta, (2017) stated that-

“Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or entirely concluded "online" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.”

Thus, it can be seen that India has started accepting ODR as a method of dispute resolution, as can be verified from various developments being made. With greater exposure, familiarity and uptake, ODR shall become a commonly chosen method, if not the default option, in arbitration. Momentum for the use of ODR is growing in litigation too, and competition will naturally drive change. As long as this growth trend continues, ODR will revolutionize modern dispute resolution practices. India is making concerted efforts to adopt ODR as a method of dispute resolution.

Probable Way Forward for ODR

ODR as a method of dispute resolution has found many takers, especially in the COVID-19 context, as can be ascertained from various statistics on increase in usage of online platforms for hearings of arbitration matters. The prestigious Hong Kong International Arbitration Centre (HKIAC) reported that over 70% of hearings that were conducted by the institute in the months of April-May, 2020, involved online platforms. Seoul’s International Disputes Resolution Center (SIDRC) also reported that a monumental 500% increase in cases being resolved via online modes was recorded, specific to SIDRC. Marking the onset of the “New Normal”, cases are increasingly being shifted online, which shall continue even in the post-pandemic scenario.

Conclusion

While ODR has been a part of the services being offered by various arbitrators since a long time, the sudden rise of ODR can be attributed to the onset of COVID-19. The arbitration community has been proactive in changing its approach as and when required according to the circumstances, as can be ascertained from the moves made by various leading arbitral institutions shifting their proceedings online. The arbitral institutions have also been at the forefront in addressing genuine concerns of stakeholders involved such as security, privacy and data protection. This has led to an exponential increase in utilization of such services, which are presently instrumental in aiding the arbitral community in coping up with pendency of cases due to the onset of COVID-19. It can be concluded that ODR as a method of dispute resolution shall be successful, with its advantages being utilized even in the post-pandemic scenario.