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          Prajwal Basnet           Mail: [email protected] National Law University, Delhi 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. 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.[1]  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: 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.[3] Before the outbreak, ODRs were generally held for consumer disputes that would concern small claims[4] 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. 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.[5] 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.[6] 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. The nature of the issuance of arbitral awards and the outcomes of mediation were, and in some cases, still subjects that were ambiguous and dynamic but have undergone gradual progressive changes in their regulation. Even though online arbitration is being recognized and enforced does not make its decision binding or final in many of the disputes. It is mostly up-to the parties’ will to render a decision binding.[7] The parties can only choose for it to be conditionally binding or unilaterally

As an extension of ADR, a new practice called “HYBRID ADR” has recently come into practice. Hybrid ADR means nothing but combining various traditional methods of dispute resolution to suit the different needs and preferences of various parties. This can be a useful approach particularly when the dispute is complex and requires a more tailored solution than what traditional ADR methods offer.For example, in a hybrid mediation-arbitration process, the parties first attempt to resolve their dispute through mediation, but if they are unable to reach an agreement, the mediator will become the arbitrator and make a binding decision on the dispute. In a hybrid negotiation-arbitration process, the parties first attempt to negotiate a settlement but if they cannot agree, they will move to arbitration and if the arbitration also doesn’t succeed, the parties can move into litigation.Hybrid ADR can offer several benefits over traditional ADR methods. Firstly, it can be more flexible, allowing parties to customize the process to their needs. Secondly, it can save time and money, as parties can avoid a lengthy court process by resolving their dispute through ADR. Finally, it can be more effective, as it allows parties to use a range of methods to achieve a resolution that works for them.However, hybrid ADR also has some potential drawbacks. The process can become more complex and confusing if parties are not familiar with the different ADR methods. Additionally, parties may not agree on the order or combination of ADR methods to use, which can lead to delays and impasses.Overall, we can say that hybrid ADR is an innovative approach to resolving disputes that allows parties to tailor the process to their needs, and can result in more efficient, effective, and satisfactory outcomes.

Message from the Blog Team ECI’s Blog Team invites original contributions from students, researchers, academicians, legal practitioners, and those who are passionate about ADR, with the objective of facilitating a dynamic academic discourse and widening the scope for creative research works in the field of ADR. We highly encourage the authors to take a multidisciplinary approach when addressing pertinent research areas in the field of ADR. If you are willing to make an academic contribution in this field, ECI is your platform to be! SUBMISSION GUIDELINES Content: Owing to the nature of the journal, we shall only accept entries that are related to Alternative Dispute Resolution (‘ADR’). ·The entries must showcase a predominant link to ADR. All the authors are requested to send only Original Content. All the submissions shall go through a mandatory process of plagiarism check. Covering Letter: Submissions must be sent to [email protected]. ·All submissions must be accompanied by a cover letter, containing the name of the author/s, institutional/organisation affiliation, title and category of the submission and a contact address of the author, including the e-mail address and the phone number. Submissions should be sent as MS word (.doc format) attachments with the title of the article as the file name. The author is also requested to attach an image to accompany the piece. However, this does not form a mandatory requirement. The image should be representative of the submission’s topic, area, or argument. It should be high quality (upwards of 1000p) and have an aspect ratio of 1:1 (Square). Detailed guidelines – https://excuriainternational.com/guidelines-for-blog-submission/

– Written by Dmitry Davydenko* It is always important to find ways to settle disputes amicably. This is especially true nowadays when numerous obstacles hinder the proper performance of contracts, especially international ones. In particular, pandemic-caused restrictions lead to numerous situations where a party becomes unable to perform a contract or such performance becomes impractical. Apart from that, for instance, in Russia – West or Iran – US context, business relations meet severe challenges. If parties solve a dispute through a court procedure, it becomes especially difficult to get a judgment or an award recognized and enforced internationally. Arbitrating a dispute remains an option but it may take much time and effort and the result sometimes, unfortunately, proves unenforceable for various reasons, even though some positive recent cases do exist. Therefore, the ideal solution for the parties consists in showing wisdom and cooperating in the spirit of good faith, doing as much as possible to keep the contract, or if it gets impossible, terminating relations in a way that no one feels offended and wants to retaliate. One of the most appropriate legal instruments for that is the settlement agreement. I. The settlement agreement in domestic and international law Although many people have an idea about settlement agreements, still understanding of this legal instrument in various legal systems differs. The substantive laws of many States of continental Europe contain provisions for a settlement agreement. For example, the French Civil Code expressly governs “Contrat de transaction”, and the Italian Civil Code has similar (but far from identical) rules on the transaction. In some post-Soviet States, only procedural law expressly governs settlement agreement, rather than substantive law. Many other jurisdictions provide for no express regulation of this contract, so it just exists in practice.  Unfortunately, parties sometimes fail to fulfill a settlement agreement. When parties decide whether to conclude such an agreement, they often have serious concerns about how to ensure its performance. This becomes especially relevant in the international context when the parties locate their enterprises or businesses in different states, with the result that the assets of one party appear hardly accessible to the other. Summing up, the parties who take the decision “to settle or not to settle” have a legitimate interest in ensuring the cross-border enforceability of the agreement.  International law contains scarce regulations on the cross-border enforceability of the settlement agreement. The only universal instrument has become the Singapore Convention, but it governs only the cross-border enforceability of settlement agreements reached as a result of mediation. Meanwhile, if a settlement agreement is reached as a result of mediation properly conducted then normally its content corresponds to the interests of the parties. Ensuring its expedient performance is praiseworthy but the Singapore Convention will likely need much time to become effective and universally accepted.  Another problem with the convention remains in the fact that it constitutes the fruit of international compromise; otherwise, it would not be possible to reach a mutually acceptable solution while negotiating and drafting the convention. As such, it does not establish expedient enforceability. It just specifies uniform rules pursuant to which a party may ask the competent court to enforce the agreement, but the other party has quite plenty of opportunities to oppose the enforcement, much more than the party opposing the enforcement of the arbitral award under the New York Convention 1958. For instance, under the Singapore Convention, the opposing party may allege that the content is contrary to applicable law, that it is not operative, void on some grounds, and that there may be several other reasons. As a result, the court procedure concerning enforceability will likely take quite some time and thus become burdensome. Therefore, other ways to ensure cross-border enforceability of settlement agreements apart from the Singapore Convention need exploration.  II. Legal opportunities for enforcement of settlement agreements Currently, the common denominator consists in enforcing the settlement agreement as an ordinary contract. As a result, the respective procedure will be judicial and, likely, more or less lengthy. If the settlement agreement contains an arbitration clause, the enforcement may perhaps become more expedient, as in many jurisdictions arbitration normally takes less time and resources than court litigation. It also frequently remains a good option to consider including in the settlement agreement a mediation clause in addition to an arbitration clause so that it will increase the chance of voluntary compliance with it and then, if necessary, of its enforceability by arbitration.  III. Differences in the governing law matter when drafting a settlement agreement The method of enforcing a settlement agreement will often depend on the legal system concerned in the said agreement. These differences require consideration when choosing law applicable to the substance of the settlement agreement. The remedies in case of non-performance of the settlement agreement would depend not only on the content of the agreement itself but also on the applicable law. In civil law countries, a more likely legal remedy will consist of specific performance of the agreement if it contains a duty to take some actions, e.g. to surrender the property. In common law countries, the primary remedy will include damages. For example, under Australian law in case of breach of contract normally a court or tribunal would award damages, while specific performance would become an applicable remedy only in relation to some unique objects for example real estate objects which are not something that cannot be required in the market. A similar approach exists in Swiss law. On the contrary, usually in civil law jurisdictions, specific performance would constitute an ordinary remedy and the court or tribunal would award damages only if specific performance proves impossible in a particular case.  Furthermore, the way how in case of litigation a judge or an arbitral tribunal will interpret the mutual rights and duties of the parties will also depend on the applicable law. Again, different legal traditions exist as regards the legal doctrine of force majeure. Thus, common law generally contains no default rule on force majeure so what parties include in the settlement agreement will become their force majeure event. In contrast, civil

– Written by Dmitry Davydenko* A Settlement Agreement is usually defined as an agreement by which parties settle a dispute or a legal uncertainty in their relations, normally through reciprocal concessions. It is expressly governed in the civil codes of France, Italy, and several other states as a sui generis contract. Its causa, therefore, consists in the settlement (extinguishing) of a dispute or legal uncertainty. The issue of determining the law applicable to an international settlement agreement becomes relevant when a dispute arises out of or in connection with such agreement, or its validity is challenged. Then it may become necessary to interpret the agreement and determine the rights and duties of the parties. Applicable law turns out to be relevant and even crucial in the context of enforcement of the settlement agreement. For instance, United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) provides in Art. 5(1)(b)(i) that the competent authority of the Party to the Convention may refuse to grant relief at the request of the party relying on the settlement agreement if the other party furnishes to the competent authority proof that the settlement agreement is null and void, inoperative, or incapable of being performed under the law to which the parties have validly subjected it or, failing any indication thereon, under the law deemed applicable by the competent authority of the Party to the Convention where relief is sought. Meanwhile, the issue of law applicable to the international settlement agreements is studied insufficiently compared to various other issues of private international law/conflict of laws. This article proposes a brief analysis of basic principles of conflict-of-laws analysis to determine law applicable to settlement agreement with a foreign element (resulting from cross-border relations). Connecting factors analysis should start from lex voluntatis. Indeed, express or implied choice of law by the parties should be respected. However, parties sometimes do not choose applicable law in settlement agreement for various reasons, e.g. such agreement is concluded at the “eleventh hour” after difficult talks when the parties’ negotiators areexhausted and wish to quickly conclude the agreement before any of them changes their mind. They may also consider choice-of-law clause unimportant on the ground that dispute is already settled. If no law is chosen, then several other connecting factors need to be considered. Law of the place of conclusion of the settlement agreement (lex loci contractus) may be considered relevant presuming that the parties should reasonably take into account the law of the jurisdiction where they enter into their agreement. However, such a place may be simply random and chosen merely out of convenience. It hardly has any bearing on the parties’ relations. Furthermore, an agreement may be concluded through electronic communication, without a personal meeting of parties. Therefore, thisconnecting factor appears not satisfactory. Another approach would be to rely on characteristic performance of the parties. Such test underlies, e.g., Article 4(2) of Rome I Regulation: “Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.” However, then a question arises what kind of performance should be considered characteristic of a settlement agreement. Its purpose consists in extinguishing a dispute: a claimant party usually waives their right of claim in exchange for some reciprocal step from the other party, such as accord and satisfaction. Therefore, waiver of rights/claims may often be characteristic of such agreement. Indeed, for instance, the United States tends to consider the settlement agreement as a special contractual type with consideration granted specifically for termination of a legal dispute.However, both parties may undertake to waive certain rights to settle the dispute. Consequently, application of characteristic performance test will not always be appropriate. Third option to explore would be lex loci solutionis (place of performance). Unlike the previous approach, this one features not the place of the performer, but the place of the performance itself. However, both parties may undertake to make certain steps to perform a settlement agreement. The agreement may also consist in refraining from actions (e.g. recognition of certain property title of the other party; a non-compete obligation) rather than active performance. Therefore, the test may not always be possible to apply. Fourth option relies on accessory nature of settlement agreement. Indeed, it is a derivative agreement, which is always based on some previous relations of the parties. Consequently, it appears to be logical to apply the same law as to the underlying relations (contractual or other). The same legal regulation of previous and subsequent relations, e.g., a contract and its modification by settlement agreement, gives the parties greater confidence in the existence, exact content and enforceability of their rights. Where a settlement agreement creates completely new obligations, rather than modifies previous relations, it would be more appropriate to apply the closest connection test. For instance, Article 4(4) of Rome I Regulation provides that “Where the law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract shall be governed by the law of the country with which it is most closely connected.” To determine the law most closely connected to the settlement agreement one should consider the subject and circumstances of the conclusion and performance of the settlement agreement, both previous and subsequent, e.g. place of negotiations; in which state the main part of the obligations under the terms of the settlement agreement is to be fulfilled (lex loci solutionis); parties’ places of residence/center of business; other relevant factors. Based on the forgoing the author’s conclusion is that, unless the parties agreed otherwise, and unless otherwise follows from the settlement agreement, it shall be subject to the law applicable to the relations which gave rise to the settled dispute. However, the settlement agreement may deal with a complex conflict. That is, the underlying relations may be

A disquisition on the ‘Stovepipe Program’ Like moths to a flame, conflicts are a necessary component of human relationships, to which workplace relations are not immune. The workplace houses a gamut of individual interests that are bound to clash. From the way a colleague opens the door (you’d be surprised at certain pet peeves that some people have) to the usage of unprofessional email salutations all the way down to employment termination. The workplace clashes range from personal interests to aggregate interests to financial interests among a list that is supposedly endless. Well, the stovepipe program is not for the resolution of pet peeves, or is it? This piece outlines and discusses the stovepipe program. It is an employment dispute resolution system agreed upon prior to a dispute by parties, between the employer and employee usually, that utilises arbitration administered by neutral institutions. The 21st-century workplace, particularly the big corporations, has shifted its recourse from reactionary measures like resorting to litigation to proactive measures where disputes are mutually deliberated upon and wisely so. For context, eLawForum, a premier business-to-business exchange for legal services, estimates that the total cost of litigation spent by Fortune 500 is to be $210 billion, equivalent to one-third of the after-tax profit of the Fortune 500, in the past 8 years thereby dwarfing CEO compensation. So much for so little; what is at best integrated reactionary measures such as the ombudsman program and open-door policies were subsequently popular as compared to proactive measures like the stovepipe. However, these integrated reactionary measures have one problem in common. Structural bias is a general concern for the employee where these measures are utilised. The reason being both the systems are financed by the company itself, and consequently, the company’s interest in the scheme of things may surpass that of the claimant. The thought of it might just be likened to reporting a culprit to himself, more often than not he’d take his own side! Moreover, the satisfactory resolution of conflict may engender a sense of fairness that structural bias incinerates: that the claimant has been heard, treated with respect, and interests met or at worst acknowledged. In considering dispute resolution generally, it could be administered by one sole party, by the two parties, or by a third party. The first two measures are designed and masterminded by one of the disputing parties. The other party may not feel a sense of fairness in this process compared to the remaining parties. Alternate Dispute Resolution methods such as mediation generally fall within the purview of the second measure in which case both parties shoulder the responsibility of resolving the dispute to a neutral third person. Both the parties can easily succumb to the resolution achieved faster because of the inclusivity it affords. The third measure allows parties to submit their dispute to a neutral party for resolution like the stovepipe program. The institution that administers this resolution may or may not be privatized. An example of a public institution is the Equal Employment Opportunity Commission which hears cases related to employment disputes in America. While an example of a private institution is the International Institute for Conflict Prevention and Resolution, their Administered Employment Arbitration Rules go so far as necessitating the arbitrator to justify the rationale behind the decision arrived at. While the success of this program in workplaces is debatable, however, in theory, it best serves commercial needs of expediency. One last feature about the Stovepipe program; remember Santa Claus and the myth that he gets into the house on Christmas eve through the chimney, also called stove pipe? The stove pipe is a long pole that only filters out smoke and that is how tight and confidential the Stovepipe Program is considered to be; nothing can go in or out. Except, of course, Santa.

What ECI thinks of: Relevance of Counsel Ethics in International Arbitration Program ~Authored by Prantika Dutta  “International arbitration dwells in an ethical no man’s land…where ethical regulations should be, there is only an abyss.”‘Counsel Ethics’ is presently identified as a gray area of arbitration which delves into the code of conduct the counsels are required to adhere to for fair and just adjudication in arbitration proceedings. The development of international arbitration over the past century is of unique character – despite being connected to various State jurisdictions, it is autonomous in its own nature. In its developing stages, the world of international arbitration was majorly obscured due to multiple countries’ transnational complexities. However, in its history of existence, international arbitration has entered a crucial juncture where cognizance is being taken by the global nations to analyse its nature, purpose, and legitimacy thereby making the role of counsels and their ethical compass ever-prominent. Transnational dealings of affairs are a breeding ground of ensuing problems in international arbitration in the absence of backing of foolproof laws and regulations. There is a compelling need and relevance for the enactment of a fair Code of Ethics in international arbitration and its recognition by transnational institutions. In tandem with its growing popularity as a viable alternative to traditional courtroom litigation, the international arbitration community has noticed the need for certain changes in the law to make the system more just for the parties who opt for international arbitration, and in turn, be attuned to the changes in the contours of arbitration. International arbitration is less recognizable as a form of “alternative dispute resolution” than as a type of “offshore litigation” This transformation has been both celebrated and decried as the “judicialization” of arbitration.The core ethical issues raised regarding the arbitration are consent, choice, confidentiality, and conflicts of interest. Scholars believe what encompasses core ethical values in an arbitration question can be answered along the lines of maintaining truthfulness, fairness, independence, loyalty and confidentiality by the parties involved in the arbitration including the arbitrators and the counsels. However, what constitutes ‘core ethical values’ majorly depend on cultural and ethnical background along with legal backdrop. Studying counsel ethics is a complex issue due to the underplay of not only different laws but also incompatible laws at one issue. There exist vast differences between the treatment of counsel ethics across civil law and common law countries that are bound to clash in an international arbitrational setup. The system of international arbitration has come under fire for its lack of code of conduct for counsels which in turn challenges the delivery of justice to the parties involved. There are no well-structured legislations governing the ethical codes for counsels appearing before an international arbitration. It is regulated under laws such as International Chamber of Commerce (“ICC”), London Court of International Arbitration (“LCIA”), SIAC (“Singapore International Arbitration Centre”), but they are yet to deliver a concrete regulation on counsel ethics despite it being a hot potato in the field of international arbitration. The presence of clear ethical codes affirms the existence of a dependable system of arbitral enforcement that the parties from various nations can resort to in order to resolve their transnational disputes. It has to be evolved into a fully operational international adjudicatory procedure, which aims to effectively guide and monitor the conduct of the counsels who take part in this discourse. The implementation of proper ethical codes ensures that inappropriate behaviour of the counsels will be viewed as an ‘aberration’ in an otherwise healthy system rather than it being a “symptom of lurking systemic pathologies” which risks jeopardizing the credibility of an entire mechanism of transnational dispute resolution.