developer_admin

–Prajwal Basnet* *The author is a Third Year student at National Law University, Delhi, India. In the Internet context parties located in different parts of the world make contracts with each other at the click of a mouse. However litigation for these disputes is often inconvenient, impractical, time- consuming and expensive due to the low value of the transactions and the physical distance between the parties. Online Dispute Resolution (ODR) is often referred as a form of ADR which takes advantage of the speed and convenience of the Internet and ICT. ODR is the best option for enhancing the redress of consumer grievances, strengthening their trust in the market, and promoting the sustainable growth of e-commerce. With the increase in practice of ODR after the pandemic, the mechanisms for it ought to and have been seen to be more optimized than ever before for the parties’ convenience and it binding nature even more imperative. It is from this fact that to come up with innovative ways about regulating an ODR, it would be crucial in firstly understanding the nature and the mechanism of an ODR. 1. Imperative effect of Online Dispute Resolution (ODR) The means of ODR for filing consumer class action suits and in general many of the disputes has been of growing importance since the past year due to the threat imposed by the coronavirus and imposition of the lockdown. Online Dispute Resolutions has positive side as well as drawbacks in its operation. As a result, the technicalities for its proper conduct still needs much scrutiny for proper regulation even though the platform has been on a constant path of recognition and progression through the enactment of major treaties such as the New York Convention and the ECC (2005 UN Convention on the Use of Electronic Communication in International Contracts), UNCITRAL, etc.  Descriptively speaking, there are two dimensions to an online dispute resolution. Talking about one dimension regarding the access and convenience, traditional dispute resolution takes place where the parties and mediators/arbitrators must be present at the same location together and at the same time. Conversely, an online dispute resolution is not synchronous to the former as the three actors are not needed in a simultaneous presence for the relevant process of hearings. This would be of cost benefit for them as their time and travel to the location and also of their worktime would be preserved.[i]  Online dispute resolutions on the other dimension, facilitates the use of information communication technology (ICT) as a facilitator of the proceedings and sometimes also as a substitute for judicial function assumed by the arbitrators. The main functions of ICT in an online resolution process are: to file documents online by sorting them based on the relevance, theme, etc. highlight crucial points bring/show up relevant forms as well as performing other functions as a result saving the time of the parties.[ii] ICT also has function much greater than acting as a mere tool for the parties in conducting online proceedings. In an automated negotiation (also known double-blind bidding), the parties are more concerned with coming to a settlement than with disputing the liability. Hence the relevant software is fed with up to three offers (bids having been hidden) that proceed to settle disputes when the offers come within the range that is pre-set or even during a midpoint. From the outset, the parties are bound to oblige the binding nature of the settlement that is produced by the software. Online dispute resolutions are operated by a platform that is linked to a trade association or an arbitral institution where the parties fill in a claim from through online that directs to appropriate processes with applicable remedies which are then sent to negotiation and finally the process of arbitration.[iii] Before the outbreak, ODRs were generally held for consumer disputes that would concern small claims[iv] which obviously is not the case anymore as it began to cover ADR disputes of wide subject-matter in as much as to replace ADR at some point during the peak of the pandemic. Due to this, the working mechanism ought to be much optimized for the efficiency and conveniency of the parties. 2. How Is An Online Arbitration Regulated? Online Dispute Resolutions (ODR) are not directly controlled through any specific instruments or sort of mechanism that would govern it like a traditional arbitration process. The fact stands still even for ODRs that are held for Consumer Disputes. The legal principles that it is based on, are same as its counterpart i.e. based on the text of the 2013 Consumer ADR Directive.[v] It is different from the offline process because both the consent to arbitrate and the rest of the proceedings themselves are conducted online (or both online or offline). Nowadays, online arbitration is also increasing for to be used for business-to-consumer (B2C) relationships along with traders and other commercial actors that are governed under the principle of consumer law and consumer arbitration therefore apply mutatis mutandis. However, opposed to the theoretical example, in practical sense, it is seen that the ODR needs more uniformity, clarity and sensible regulation. Talking about the consent to enter into an arbitration agreement, in the traditional method where the consent is of paramount importance, in online process there are many instances where consent of the parties are precluded in an agreement with the company owners. For example: A client or customer cannot waive or exclude such clause specifically where such clause is an intrinsic part of the purchase or other online agreement.[vi] Hence, the whole industry is subject to this form of arbitration. Such clauses according to relevant consumer protection directives would be regarded as unfair. Hence, it can also be seen that such cases are of such nature that the consent is well replaced by the fairness that assists in regulating smooth conduct of online arbitration. 3. How are online arbitral awards issued and what are the challenges faced in their issuance?    The nature of the issuance of arbitral awards and

Urja Thakkar and Jigme Palzer Tshering* *The authors are 3rd year students pursuing B.A. LL.B (Hons) from National Law University, Delhi. Emergency relief has often been touted as the ‘Achilles’ heel’ of an otherwise systematized International Arbitration. Emergency Arbitration is a fledgling concept and was devoid of strong footing in Indian arbitration till the Supreme Court judgement in the case of Amazon.Com NV Investment Holdings vs Future Retail Ltd and Others[i]. I- Background  Amazon NV Investment Holdings LLC sought interim relief of injunction in the form of an emergency arbitration under the Singapore International Arbitration Council Rules (“SIAC Rules”) with regard to the transaction between Future Retail Limited and Mukesh Dhirubhai Ambani Group. The dispute arose due to pre-existing shareholder agreements between Amazon and FRL which the aforestated transaction allegedly violated. The interim relief was granted by the emergency arbitrator, however, the Biyani group went ahead with the impugned transaction claiming nullity of the award as the emergency arbitrator was coram non judice or without legal jurisdiction. FRL filed a civil suit before the Delhi High Court which sought to interdict the arbitration proceedings and prayed for an interim relief of restraining Amazon from writing to statutory authorities for enforcement of the emergency arbitrator’s Award. Amazon nevertheless filed an application under Section 17(2) of the Arbitration and Conciliation Act 1996[ii] (“the Act”) which was heard and disposed of by the learned Single Judge of the Delhi High Court. The breach of the Shareholders’ Agreements was admitted and the plea only extended to the claim of nullity of the emergency arbitrator’s award which was heard and rejected by the learned Single Judge and it was held that the Award was enforceable as an order under the Act. Questions of Law The primary question of law before the Court was of whether an “award” delivered by an Emergency Arbitrator under the Arbitration Rules of the Singapore International Arbitration Centre [“SIAC Rules”] can be said to be an order under Section 17(1) of the Arbitration and Conciliation Act, 1996 [“Arbitration Act”]. Secondly, the Court had to determine whether an order passed under Section 17(2) of the Arbitration Act in enforcement of the award of an Emergency Arbitrator by a learned Single Judge of the High Court is appealable. Held The Supreme Court upheld the order of the single bench of the Delhi High Court which had ruled in favour of the enforcement of the Emergency Award and has held that the single judge\’s order was not appealable to the division bench of the High Court under Section 37(2) of the Arbitration Act. II- The Effects of Popularizing Emergency Arbitration in India This judgment marks the first concrete step in Indian judicial history and jurisprudence towards Emergency Arbitration (“EA”), with judicial decisions on the matter varying in nature and being few and far between[iii]. Before delving further into this discourse, one must inculcate an accurate picture of the merits, demerits, and effects thereof. As can be inferred, Emergency Arbitration exists to provide pro tem measures when the party/parties are not able to await the formation of an Arbitral Tribunal. Therein lies its primary merit.  Akin to the very concept of arbitration, EA stands as a substitute for national courts, in lieu of the distrust of the parties in these courts’ ability to provide urgent relief, with lengthened trials and hefty litigation costs often serving as hallmarks of the Indian judicial system. The decision of popularizing EA, therefore, stands to be meritorious in this aspect. Party autonomy is one of the foundational pillars of arbitration, as was reiterated by this case, citing the cases of Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd.[iv] and Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.[v] Additionally, the Court reasoned that unlike in India, international practice is in favour of the enforcement of emergency arbitral awards with Singapore, Hong Kong, and the United Kingdom all permitting enforcement of emergency awards. It was of the opinion that adopting such practice is of utmost pertinence. Due to this aforementioned practice, international businesses are attracted to these jurisdictions in the pursuit of timely interim relief furthering the development of arbitration as a field. As India attempts to adopt an arbitration-heavy approach to dispute resolution as well as draw in international companies and conglomerates such as Amazon in this case, this new development stands to further its cause. However, while the concept has its proponents, this so-called ‘Achilles’ heel’ of the arbitration system has been considered riddled with demerits.  It was argued by Harish Salve on behalf of FRL that this can be evidenced by the fact that the Parliament chose to not adopt the measures suggested by the 246th Law Commission Report regarding the amendment of Section 2 of the Arbitration Act, to include within sub-section (1)(d) a provision for the appointment of an Emergency Arbitrator.  While the Court deemed it appropriate to read the legitimacy of Emergency Arbitration into the Arbitration Act and the legislative intent, citing the case of Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd.[vi], it is undeniable that the fact that there exists no direct statutory provision for the same leads to a certain level of ambiguity. As any emergency tribunal would, Emergency Arbitration tribunals would tend to gloss over a lot of the subject matter, consequently overlooking certain facts that might otherwise be deemed significant. Further, matters in relation to commerce and business tend to be time-sensitive in nature, as it was in the case in discussion. There exists the possibility of parties capitalizing on this uncertainty, further highlighting the need for some manner of regulation in regard to the actual arbitral proceeding, as well as a definitive answer to the question- What constitutes an ‘emergency? III- What Constitutes an ‘Emergency’? The concept of an emergency arbitration evolved in an effort to provide urgent interim relief to parties in cases wherein the time-sensitivity makes it imprudent to await the formation of a tribunal. The entire process, from the date of filing the