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– Shreya Bansal * It is stated in Article 89 of the Civil Procedure Code that “If the court deems fit, it can allow arbitration, mediation and conciliation for settlement of disputes between parties outside the court.[i]” This section expressly means that power has been inferred to court to refer matters to alternate dispute mechanisms(“ADR”). However, many disputes have always been under contention if the same can be resolved outside the courts. One such area is the disputes arising out of intellectual property rights (“IPR”). Arbitration as a means of resolving commercial disputes has become progressively the default mechanism around the world and in India. Indian Courts have also been trying to enlarge alternative dispute mechanism scope so as to reduce the burden on courts. Courts are trying to settle the practices of ADR and are coming up with various tests to determine the arbitrability of disputes. One such area of contention is regarding the arbitrability of Intellectual Property Disputes . The courts have at multiple instances said that IPR Disputes are to be considered non-arbitrable. The major reason for such a decision is that public policy aspects are believed to be involved in IPR disputes which makes it against the public interest if such disputes are made arbitrable. Further, the lack of clarity regarding the arbitrability of IPR disputes in the statutes such as Arbitration and Conciliation Act, 1996 and other intellectual property statutes makes the issue more complex. The supreme court has attempted to settle the issue regarding arbitrability of disputes in the case of Vidya Drolia.[ii] The Supreme Court while delivering its judgement laid down the law on arbitrability of disputes generally and the forum to decide upon the question of \’non-arbitrability\’ of a dispute. However, the concern around arbitrability of IPR disputes still remain. The judgement has inducted Intellectual property as monopolistic rights, subsequently indicating them as non-arbitrable. This concern has recently been addressed by the Delhi High court in its recent decision of Hero Electric.[iii] Arbitrability of disputes has been determined till 2020 by the decision of the Supreme court of India in the case of Booz Allen Hamilton v SBI Home finance[iv]. It was held by the court that where the disputes involved in personam rights, the same shall be considered arbitrable. However, when the dispute shall involve a right in rem, the same shall be considered non-arbitrable. The court considered the dispute regarding mortgaged property sale and held that since such dispute involved right in rem, the same shall be considered non-arbitrable. Further disputes such as those relating to rights and liabilities that arise out of criminal liabilities, guardianship, matters, matrimonial matters, winding up or insolvency matters, eviction or tenancy matters, and testamentary matters were enumerated as non-arbitrable. While questions regarding when disputes were arbitrable were dealt with in the Vidya Dolia and Booz Allen case, the arbitrability of Intellectual Property disputes was specifically addressed in the case of Eros International Media Limited v. Telemax[v], where it was held by the Bombay High Court that certain disputes of Intellectual Property were arbitrable. The court was approached under Section 8 of the Arbitration and Conciliation Act, 1996. The dispute was regarding the marketing and distribution rights of feature film and the defendants conduct in this regard. With respect to the arbitrability of IP rights, the court observed that IP rights are a species of property rights and cannot be considered as a separate body of law. The court held that IPR disputes of commercial nature where the parties required ‘specific reliefs’ against the other party i.e., actions in personam, are arbitrable. A four-fold test was thereafter created by the court in the case of Vidya Drolia that determines arbitrability of disputes. The court specified four instances when disputes will not be arbitrable. First when the statute barred the subject matter from arbitration, second, when the subject matter or cause of action related to right in rem, third, when it affected rights of the third party, and fourth, when it related to alienable functions of state. Certain IPR issues such as issuing patents and trademark registration have been considered as exclusive matters having an erga omnes effect that fall within the sovereign functions of the state by court. Since monopoly rights are granted, they are to be considered non-arbitrable. While some confusion is created by such an obiter, the same is not to be considered as blanket prohibition. The case of Hero Electric Vehicles Private Limited[vi] resolved the ambiguity in 2021 where the Delhi High court held that Intellectual Property disputes are arbitrable. The case pertained to infringement of trademark where the application to refer the dispute to arbitration was filed. Since the issue in the present case centred around two contractual arrangements of Family settlement Agreement and Trademark and Name Agreement, the remedy is not sought for someone using deceptive trademark but for the right conferred to a different family group under business division and the essential issue was not provision of trademark act but the provisions of the agreement, the same can be effectively adjudicated by arbitration. The court clarified that the concern identified in the case of Vidya Drolia does not affect the present judgement as firstly no sovereign functions are involved and secondly, it does not fall into the categories of non-arbitrable disputes listed in Vidya Drolia. Further, the court held that courts must caution and differentiate between actions in rem and rights in rem. When the remedy is sought against a particular person or group as in the present case of Hero Electric case, the same would not constitute an action in rem and therefore would not have an erga omnes effect. The Hero Electric judgement is welcome. Even though IP is a special form of property as it is intangible in nature, it is not very different from other species of property. With other forms of property, IP requires registration. In modern commercial contracts, IP forms an essential element very often and allowing such disputes to be arbitrated

What is Arbitrability -Shashank Mehrotra* In simple terms, arbitrability refers to the determination of whether a legal dispute should be resolved by the process of arbitration. Arbitration is a process in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. The concept of Arbitrability could be seen to stem from Article II of the New York Convention[i], which provides for each state to have a written document signifying the “subject matter capable of settlement by arbitration.” Article V of the same convention reinforces the concept of arbitrability by laying down that a court can set aside an arbitral award if it finds that the subject matter of the arbitration was not capable of being arbitrated upon by the state’s municipal laws. Such non-arbitrability of a dispute renders the entire agreement invalid, which puts the dispute beyond the jurisdiction of the arbitral tribunal, and the award unrecognizable and unenforceable. Importantly, Arbitrability may refer to three questions- “Whether there is an arbitration agreement? Whether the dispute is beyond the scope of the agreement? Whether the subject matter is arbitrable?”[ii] The Statutes Although the question of arbitrability has largely been left for the courts to determine, sections of the Indian Arbitration Act do have some references to Arbitrability giving courts broad contours to operate within while adjudicating upon the same. Section 2(3) of The Arbitration and Conciliation Act, 1996 recognizes non-arbitrability by laying down that if certain disputes by virtue of laws applicable must be referred to a particular court, they may not be referred to Arbitration. Section 34(2)(b) and 48(2) of the Act further lay down that courts are empowered to set aside the award granted on the grounds that the subject matter of the dispute is not arbitrable.  Critically, the Act does not specifically demarcate those subject matters which would not be arbitrable, and this was left to the courts wisdom to decide ex visceribus act. We shall now look at how the Courts have approached this problem over time. I. The Booz Allen Case The question of arbitrability is one, which according to the Booz Allen[iii] case, revolves around the determination of three factors. Firstly, whether claims made in certain scenarios that the subject matter of the dispute is one which cannot be determined by a private tribunal but a public tribunal such as a court of law. Secondly, whether the dispute is one which is covered by the arbitration agreement, or if it falls under the “excepted matters”, hence taking it out of the purview of arbitration. Thirdly, the dispute must be one which has the capability of being adjudicated upon and settled by arbitration. The Court importantly noted here that the “nature of rights” was a key element in the determination of arbitrability as well. Only disputes arising out of claims of violation of rights in personam could be arbitrable, and not those concerning rights in rem. However, the court also held, taking note of a statement given by Mustill and Boyd[iv], that subordinate rights originating from rights in rem would remain arbitrable. The Court further noted that though some issues highlighted in the mortgage suit filed were arbitrable, their mere presence in the suit would not render the whole suit arbitrable. Those issues in the suit though capable of being arbitrable in themselves, could not be divided from the mortgage suit. The Court borrowed the reasoning from its earlier decision in Sukanya Holdings (P) Ltd. v. Jayesh H.Pandya[v] to back its decision, and rule that bifurcation of claims of arbitration was not possible. II. Vidya Drolia Case Recently, the Supreme Court in Vidya Drolia[vi]case made further observations, giving four concise principles. The Court importantly re-affirmed that bifurcation of claims for arbitration was not possible. Bifurcation here refers to having only some claims to be decided by the tribunal and others by a court. This, the court observed, would defeat the purpose of the Arbitration Act itself as it would lead to an increase in litigation costs and time consumed. The Court further differentiated between non-arbitrable claims and non-arbitrable subject matter. It described the former as those claims which are outside the purview of the arbitration agreement, as well as those which are not capable of being resolved through arbitration. Non- arbitrability of subject matter on the other hand implies that the dispute is one which cannot be legally referred for arbitration because of a law to the contrary. The court further clarified the ‘nature of rights’ issue as analyzed by Booz Allen. The Court here asserted that the rights approach may be fallacious keeping in mind the interplay of the rights in rem and personam. The court instead laid down that the distinction which must be noted is one between the judgements in rem and the judgements in personam. Importantly, the judgements in rem would operate against the whole world, and those in personam would only operate with respect to the contesting parties. Therefore, arbitration awards only acting as the latter would be legal and not those having an erg omnes effect. The court also held that the disputes involving sovereign functions of the state cannot be held to be arbitrable and must be decided by a judicial forum. Moreover, matters concerning divorce, patents, and citizenships cannot be arbitrable unless expressly allowed by a legislation. This is an affirmation of the principle of subjective arbitrability originating from the UK according to which the State may not enter into the arbitration process because of its status or a particular function.[vii] Subjective Arbitrability, also known as “arbitrability ratione personae”, is defined as the ability of individuals and entities to submit their disputes for arbitration. It covers the capacity of the parties to contract and submit disputes for arbitration, and finds recognition in Article V(1)(a) of the New York Convention.  Across the world, it mostly finds application in acting as

–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

-Liliana Amione* Abstract This article examines the current global challenges of technology implementation in Alternative Dispute Resolution (ADR), highlighting the difficulties of mediating in times of the “new normal” arising from the COVID-19 pandemic. It focuses mainly on the analysis of the Mandatory Pre-Judicial Mediation System, prior to the traditional court process, in the Province of Santa Fe, Argentina. I. Introduction On March 11th, 2020, the World Health Organization (WHO) declared COVID – 19 outbreak a global pandemic. Since then, the states had adopted preventive measures to contain and mitigate the spread of the virus and the health impact to safeguard the collective right to public health. In this sense, the strategies implemented by the countries involved isolation and social distancing, the prohibition and/or less movement and physical appearance to places of public access, and border restrictions on the mobility of people and goods. At the same time, it was necessary to guarantee the normal development of economic activities and the regular provision of goods and services. These measures were provided on a temporary basis since they restricted the exercise of human rights such as the right to work, to transit, to reside and to leave the territory, and their limitation must always be assessed against the principles of reasonableness, proportionality, temporality, necessity, legality, and be based on reasons of public order, security, and public health, as it emerges from the international and inter-American corpus juris. That being the case, those measures should not be prolonged in time to avoid a violation of international human rights. Hence, with the passage of time, it became imperative to think how to return to various social, educational, sports and entertainment activities without endangering the life and physical integrity of people. How could the protection of public health be achieved without violating other fundamental human rights? Information and communication technologies (ICT) were key tools in the new socialization imposed by COVID-19, and this is how remote work modalities, holding meetings by electronic means, digital signature, digital procedures, no longer seemed so far away and exclusive of a futuristic universe. Alternative dispute resolution was no alien to this context, and ICT must be received to enable their development in times of COVID-19. Through the lens of the decisions adopted in the Province of Santa Fe, Argentina within the Compulsory Pre-Trial Mediation System, this article examines the current challenges and prospects of implementing ICT in such a procedure. II. Alternative Dispute Resolution (ADR). Alternative forms of conflict resolution are defined as a set of procedures that allow disputes to be resolved without resorting either to force or litigation process. It should be noted, however, that such methods are not merely an alternative to judicial review. On the contrary, ADR are of substantial importance as elements for the preservation of peace and social coexistence, being closely linked to representative democracy based on the rule of law. It should not be overlooked that disputes are the main factors in disrupting peaceful social coexistence, and the strengthening of ties of peace depends on their solution. In this sense, the choice of peaceful methods and self-composition of disputes is an aspect whose awareness must be deepened among citizens and stakeholders such as operators of the legal system, public institutions, and private corporations, to name a few. In the words of Hortensia D. T. Gutierrez Posse de Ariosa \”… States are realities with life, composed of men and women and it is in their hearts, in their convictions, that peace dies or that peace is born. What disturbs them endangers peace; what satisfies them, instead, builds it.\”[i] The non-adversarial and dejudicialized methods of conflict resolution collaborate in the practice of tolerance, in the learning of coexistence, generating good neighbors who, based on those values, can coexist peacefully, and build peace through their interaction, from the Human Rights paradigm, in which the dignity of the person prevails. III. Mandatory Pre-judicial Mediation System – Province of Santa Fe, Argentina a. Regulatory framework: key provisions In the Province of Santa Fe, Argentina, by Act Nº. 13.151, the mediation system was established as a non-adversarial method for the “non – judicialization” of dispute resolution throughout the province, as a prior and mandatory instance before accessing courts. This legislation has been regulated successively by provincial decrees Nº. 1747/11, 1612/14, 4688/14, 4036/18 and 184/19.[ii] The implementing authority of the “Mandatory Pre-Judicial Mediation System” is the “Mediation Management Agency”[iii], within the scope of the Undersecretariat for Access to Justice of the Ministry of the Interior, Justice, Human Rights and Diversity of the Government of the Province of Santa Fe.[iv] The Mediation procedure is mainly structured on the physical attendance of the parties and the registration on paper of the actions linked to its development. The parties must participate personally, and they may not do so by proxy, except only for those who hold public office or enjoy certain prerogatives, and those who are domiciled more than 150 km from the meeting’s venue. The procedure must take place in judicial days and working hours, unless otherwise agreed by the parties with the appointed mediator and formalized it in writing. The mediator is obliged to hold the meetings in its office, previously authorized for this purpose, and to notify the date and time of the mediation meeting in person or by any reliable means, meaning letters, letters with notice of return closed on themselves without envelope and those that may be made by notifiers of the Judiciary. For his part, the applicant must appear at the Mediator’s office and deliver 2 copies of the mediation request form so that the mediator signs one and returns the other, being notified of its designation from that moment. Finally, the records of the meetings are delivered in print and must be signed by hand by the mediator and parties involved. Nevertheless, during the process certain stages can be identified where ICT has been incorporated, citing for example the initial form that can be sent electronically, the draw of the mediator, the notification

¿Cuáles son los desafíos en la adopción de tecnología y el cambio de ADR a ODR? Mediación Prejudicial Obligatoria y “nueva normalidad” en el ámbito de la Provincia de Santa Fe, Argentina. –Liliana Amione* SUMARIO: I. Introducción – II. Los métodos alternativos de solución de controversias. – III. Mediación Prejudicial Obligatoria en la Provincia de Santa Fe, Argentina: a. Marco regulatorio; b. Mediación Prejudicial Obligatoria en tiempos de pandemia. – IV. Experiencia de la Mediación en la “nueva normalidad”. V. Reflexión final. Introducción En virtud de la pandemia declarada con fecha 11 de marzo de 2020 por la Organización Mundial de la Salud (OMS), en relación con el coronavirus COVID – 19, los Estados debieron adoptar medidas preventivas conducentes a contener y mitigar la propagación del virus y el impacto sanitario en resguardo del derecho colectivo a la salud pública. En tal sentido, las estrategias diseñadas por los países involucraron el aislamiento y distanciamiento social, la prohibición y/o menor circulación y concurrencia a lugares de acceso público, y restricciones fronterizas a la movilidad de personas y bienes, siendo necesario garantizar, al mismo tiempo, el normal desenvolvimiento de las actividades económicas y la provisión y prestación habitual de bienes y servicios. Tales medidas fueron previstas con carácter temporal dado que restringían el ejercicio de derechos humanos tales como el derecho de trabajar, de transitar, de residencia y de salir del territorio, debiendo su limitación ajustarse a los principios de razonabilidad, proporcionalidad, temporalidad, necesidad, previsión legal, y encontrarse fundadas en razones de orden público, seguridad y salud pública, conforme surge del corpus iuris internacional e interamericano. Por tal motivo, con el transcurso del tiempo, devino imperioso planificar el retorno a diversas actividades sociales, educativas, deportivas y de entretenimiento sin poner en peligro la vida y la integridad física de las personas. ¿De qué manera podía alcanzarse el objetivo de protección de la salud pública sin conculcar otros derechos esenciales para el ser humano? Las tecnologías de la información y la comunicación (TIC) resultaron herramientas clave en la nueva socialización que imponía el COVID – 19, y es así como modalidades de trabajo remoto, celebración de reuniones por medios electrónicos, firma digital, trámites digitales, ya no aparecían tan lejanas y privativas de un universo futurista. Los medios alternativos de resolución de conflictos no resultaron ajenos a este contexto, debiendo recepcionar las TIC para posibilitar su desarrollo en tiempos de COVID – 19. Efectuaré un breve análisis de las decisiones adoptadas en la Provincia de Santa Fe, Argentina, en materia de Mediación Prejudicial Obligatoria a fin de reflexionar acerca de las perspectivas de incorporación de las TIC en forma definitiva en tal procedimiento. Los métodos alternativos de solución de controversias. Los métodos alternativos de resolución de conflictos son definidos como un conjunto de procedimientos que permiten resolver controversias sin recurrir a la fuerza y sin que lo resuelva un juez. No obstante, cabe precisar que dichos métodos no constituyen únicamente una alternativa a la instancia judicial. Por el contrario, revisten importancia sustancial como elementos para la preservación de la paz y convivencia social, vinculándose estrechamente con la democracia representativa que se asienta en el Estado de Derecho. No debe soslayarse que los diferendos son los principales factores de alteración de una coexistencia social pacífica, de cuya solución dependerá el desarrollo de vínculos de paz. En tal sentido, la elección de métodos pacíficos y de autocomposición de controversias es un aspecto cuya concientización debe profundizarse tanto en los ciudadanos como en los operadores del sistema jurídico Al decir de Hortensia D. T. Gutierrez Posse de Ariosa “…los Estados son realidades con vida, compuestos de hombres y de mujeres y que es en sus corazones, en sus convicciones, que muere o que nace la paz. Lo que les perturba, pone en peligro la paz; lo que los satisface, en cambio, la construye.”[i] Los métodos no adversariales y desjudicializados de resolución de conflictos colaboran en la práctica de la tolerancia, en el aprendizaje de convivencia, generando buenos vecinos que coexisten pacíficamente, encuadrándose en el paradigma de los Derechos Humanos, en el cual prima la centralidad de la dignidad del ser humano. Mediación Prejudicial Obligatoria – Provincia de Santa Fe, Argentina Marco regulatorio En la Provincia de Santa Fe, Argentina, mediante Ley Nº 13.151[ii], se instituyó el sistema de Mediación como método no adversarial en orden a la desjudicialización de la resolución de conflictos en todo el ámbito de la citada provincia, con carácter de instancia previa y obligatoria a la iniciación del proceso judicial. Dicha legislación ha sido reglamentada sucesivamente por decretos provinciales Nº 1747/11, Nº 1612/14, Nº 4688/14, Nº 4036/18 y Nº 184/19. La autoridad de aplicación del Sistema de Mediación Prejudicial Obligatoria es la Agencia de Gestión de Mediación (AGEM)[iii], en el ámbito de la Subsecretaría de Acceso a la Justicia del Ministerio de Gobierno, Justicia, Derechos Humanos y Diversidad del Gobierno de la Provincia de Santa Fe. El procedimiento de Mediación se estructura principalmente sobre la base de la presencialidad y el registro en soporte papel de las actuaciones vinculados a su desarrollo. Es así que se establece la obligatoriedad de participación personal de las partes, no pudiendo hacerlo por apoderado, exceptuando únicamente a quienes se desempeñan en cargos públicos o gocen de determinadas prerrogativas, y a quienes se domicilien a más de 150 km de la sede de celebración de las audiencias. El trámite debe desarrollarse en días y horas hábiles judiciales, salvo acuerdo en contrario de las partes con el mediador/a interviniente, formalizado por escrito. El mediador está obligado a celebrar las reuniones en su oficina, habilitada al efecto y a diligenciar la notificación de la fecha de reunión de mediación en forma personal o por cualquier medio fehaciente, entendiendo por tal las cartas documentos, las cartas con aviso de retorno cerradas sobre sí mismas sin sobre y las que puedan realizarse por notificadores del Poder Judicial. Por su parte, el requirente debe apersonarse en la oficina del mediador y entregar 2 copias del formulario de mediación para que éste intervenga

-Ashmin Goel* I.     INTRODUCTION In 2020, the onset of covid-19 created a severe disruption in almost all the countries of the world at an unprecedented level. The countries had to respond to this pandemic by taking stringent safety measures that included imposing overall lockdowns and curfews, leading to deleterious effects on the economies and a plummet in the GDP growth of the countries in the year 2020. As of now, we still do not know when the pandemic will be over; it has posed enormous health and socio-economic challenges for the world. The precarity posed by the threat of the rise of the coronavirus has stymied the growth of both private and public institutions for quite a long time. A need has arisen where the whole world will have to accustom themselves to the new digital life of social distancing as the virus has curbed the possibility to hold physical meetings and gatherings to run the economy.  Accordingly, judicial, and arbitral institutions have been under tremendous pressure to keep functioning during the pandemic, notwithstanding the delay in delivering judgements due to lockdown restrictions and following social distancing and other measures to suppress the pandemic. The courts are frequently questioned about how they will continue providing justice, and thus there arises a need to assess their priorities while adapting to the pandemic. In such an aberrant situation where most of the workplaces and institutions have shut down, and arbitration hearings have been delayed or cancelled, it becomes pertinent to analyse the impact of the pandemic on dispute resolution. The corollary of the current crisis is the disruptions in the Alternative dispute resolution system, the ineffectiveness of which at a larger scale has led to seeking of solutions by a plethora of institutions and individuals which have hastily veered their minds and attention to the efficacy of the ODR mechanisms. The covid-19 outbreak has led to a rapid reshaping of how pending proceedings and future disputes will go forward. ODR is not an old phenomenon and has been in use since the 1990s and therefore, it will be easier to adapt to the online mode of solving disputes and given the flexibility and efficacy that ODR provides, we can expect a step forward towards the delivery of justice in this exigent situation with the support of technology. II.    WHAT IS ODR MECHANISM? Before we delve into the impact of the covid-19 outbreak on ODR, it is apposite to get an understanding of what is ODR. The United Nations Commission on International Trade Law ODR Working Group defines ODR as “a mechanism for resolving disputes facilitated through the use of electronic communications and other information and communication technology”.[i] In other words, Online Dispute Resolution (ODR) refers to the use of Alternative Dispute Resolution (ADR) mechanisms over the internet. ODR encompasses a series of online means of communication, including “e-mail, Internet Relay Chat (IRC), instant messaging, Web forum discussions, and similar text-based electronic communications”. [ii] ODR is aimed at resolving a claim or dispute arising out of issues ranging from an online e-commerce transaction to disputes arising from an issue not involving internet, called as an “offline” dispute. ODR being a modification cum addition to the traditional legal process of resolving claims and disputes, it has become one of the most widely used methods of alternative dispute resolution mechanisms. Online Dispute Resolution can be seen as an online equivalent of ADR as it primarily involves the use of negotiation, mediation or arbitration for dispute resolution.[iii] Dispute resolution techniques range from methods where parties have complete control of the procedure, to methods where a third party is in control of both the process and the outcome.[iv]But with the introduction of the ODR mechanism, an additional two parties are found, which play a significant role in resolving disputes like the other three parties that are ubiquitous. The added parties are ‘technology’ being the fourth party and ‘the provider of the technology’ being the fifth party. The fourth party embodies a variety of capabilities in the same manner that the third party does, thus making an increase in technology advances, reducing the role of the third party. While the fourth party sometimes takes the place of the third party in the process of dealing with automated negotiations, it will frequently be used by the third-party as a tool for assisting the process. As a result of this, ODR processes offers faster, transparent, low-cost, and accessible options for resolving disputes online. The attempt made by the judiciary and the legislature to achieve the goal of providing access to justice for all has been made attainable and smooth by the processes of ODR. III.  CHANGES BROUGHT BY COVID-19 The virus has made the future uncertain, it has already affected the way business is done; most of the organisations are working on sub-optimal capacities, which had exacerbated the problems. Given the situation, the judiciary has readily incorporated technology as a means to deliver inclusive justice. Even during the nation-wide lockdown, the courts made an attempt to provide justice through the system of e-filings and virtual hearings. Still, given the excess delay in resolving disputes, arbitration through the way of technology came as the answer to increase the efficacy of resolving disputes, thereby becoming a turning point in finally bringing online dispute resolution (ODR) in the world of arbitration. The relevance of ODR in the covid era can be attributed to its cost-effective, flexibility and expedient nature. Even before the pandemic, ODR has been of much use in resolving e-commerce dispute at a significant level, but in the present time, it has been adopted to determine a wider variety of conflicts across the globe. In light of the COVID-19 pandemic, even the current Chief Justice, Justice Bobde, has noted the need for steps to be taken to make courts virtual in order to prevent the shutdown of the top courts.[v]He has also emphasised the need to have international arbitration and artificial intelligence (“AI”) as a leading alternative to the current

-Shivani Verma* “There was a time when people felt the internet was another world, but now people realise it’s a tool that we use in this world.”           Tim Berners- Lee These are the wise words of the man who is credited with inventing the world wide web, and a rather telling observation by him. We can hardly imagine a world now, where technology is viewed as a separate discipline, and not part of our daily lives. It is safe to say that there has been a pre- internet world and a post-internet world, and using technology, post internet world has seen innumerable and unimaginable breakthroughs, Online Dispute Resolution (ODR)being one of them. ODR has the power to change the landscape of the dispute resolution mechanisms, across territories. It has the power to change how humans view resolving disputes altogether. It already has, and it further will. I.   WHAT IS ODR & HISTORY OF ODR Online Dispute Resolution is different from the traditional court systems, and is in fact a parallel justice system, which successfully blends information technology and dispute resolution mechanisms together in order to resolve disputes efficiently. ODR is not just dispute resolution, but dispute prevention process as well.  ODR began its existence as ‘Online ADR’ and was meant to be an online equivalent process of offline face to face dispute resolution mechanisms such as negotiation, mediation, and arbitration.[i] Therefore, it is very important to understand the origin of both technology and the dispute resolution mechanisms, the two pillars on which ODR has developed. In this context, ‘how’ and ‘why’ questions become relevant. How has ODR come into picture? Why is it needed at all? For understanding ‘How ODR came into being’, it is relevant to also understand how the world we are living in has changed since the arrival of technology called Internet and How the concept of Alternate Dispute Resolution came into picture, making Online ADR a reality. As far as development of Internet goes, early on in 1468 the Department of Defence, United Nations had established a Federal Advanced Research Projects Agency (ARPA)which was mainly responsible for developing technologies for military use. The military network was called the ARPANET, and was restricted to use only by military.[ii] On October 29, 1969, ARPANET delivered its first message: a “node-to-node” communication from one computer to another, thus getting October 29, 1969 widely known as the “Internet Day.” In the year 1980, access to ARPANET was expanded to several universities by National Science Foundation which funded the establishment of supercomputing centres in these universities. Thus, ARPANET was now in use not just by military, but also by academia. Given the restricted use of ARPANET by military and academia, Internet for the first 20-25 years of its existence saw very few disputes. And for the few disputes there were no online formal institutions for resolving them. After the exclusive use by military and academia, ARPANET, was later formally decommissioned in 1990, having partnered with the telecommunication and computer industry for commercialization and an expanded worldwide network, known from then on as INTERNET came into being. However, after the decommissioning in 1990, the world saw the evolution of Internet and its unimaginable increased use, which meant the world of Internet would not be dispute free. And that is what exactly happened. From there to now, we have witnessed how Internet has changed the landscape for communications, associations, and interactions. It has connected people disregarding all kinds of boundaries, culture, territories, so much so that the online world did not just begin to connect using internet, but it began disputing on internet too, just like in offline world.   1990s was the time when online environment for commerce, education, employment, entertainment was on a boom. Suddenly the commercialization of Internet was a ready tool in everyone’s hand to start interacting for anything big and small. This gave them power; this gave their businesses the power too. However, similar to the offline world, where increased interaction often results in increase of disputes, the online world saw increased disputes ranging from spamming, phishing, illegal downloading, piracy, to normal commerce of buying and selling online. Cyberspace was no longer a harmonious place. Internet as a 21st century medium has revolutionised almost all areas of life. From serving as a common source of information, communications tool, global platform for trade and commerce, it has become the engine for introducing modern technological solutions for almost every activity. Needless to say, that Internet has made an impact on many areas of private and public life, one such area being law. Parallelly, when the world was getting introduced to Internet in the 1960’s and 1970s, the world was also witnessing dissatisfaction with the Court systems all over the world. The caseloads were increasing manifolds with each passing day and much more was expected from the Institution responsible for delivering justice. This discontent with the formal Court systems led to the Convening of Pound Conference 1976 where several of the legal stalwarts discussed the current state and the drudgery of the judicial system, not just in terms of efficiency but relating to cost, time, quality of outcome reached, party satisfaction, impact of resolution, interest-based needs, creative solutions etc. Pound Conference has given huge impetus to the growth in popularity to the process of Mediation, which is one of the mechanisms under Alternate Dispute Resolution. Pound Conference pressed for having the mechanisms of Alternate Dispute Resolution (ADR). ADR though seen as a recently developed mechanism, is an old trick/way of resolving disputes between parties. While Courts are the adversarial form of justice system, ADR aims at resolving the dispute in an amicable manner. Amongst the processes of ADR i.e. negotiation, mediation and arbitration, negotiation and mediation are the informal processes which aims to settle the matter between two or more disputing parties, and are more driven by needs and satisfaction of parties than their rights and obligation. In negotiation, parties try to discuss their problems and resolve it amongst each other.

Maya Venkiteswaran* I. Abstract This paper aims to identify the use of Artificial Intelligence in Mediation and the benefits it may have as compared to mediation in the conventional sense. Artificial Intelligence is a developing concept and will benefit almost all fields of life. Thus, mediation is no different when we say Artificial Intelligence will bring about a more seamless process. Further, this paper will look into the various existing software developed to benefit people opting for mediation. This paper will also look into any new areas where such software may further benefit the process. Lastly, this paper will look into the impact other jurisdictions have seen after implementing Artificial Intelligence in the process of mediation. II. Introduction With the development of technology, it is hard to find any process that does not use any form of technology. The benefits one may derive from reducing human interference have been made abundantly clear over the last few decades. In recent times the development of Artificial Intelligence (hereinafter “AI”)and machine learning have taken technology a step further.  We must first understand what AI is? AI refers to the teaching of human intelligence to machines programmed to perform and simulate the functions of humans. The term can be applied to any machine that learns psychological characteristics, such as learning and problem-solving. The ideal feature of AI is the ability to rationalize and take on tasks that can be very effective in achieving the goal of choice.[i] Machine learning teaches computers, through programmed algorithms, to perform human actions and allows the program to gather knowledge, from previous use, to develop their actions further. This is a process whereby a computer collects data, through repeated use, and uses it to improve and expand the functioning of its programs, to create life–like observations and functioning. Such a program does not need to be constantly developed. Instead, the machine learns by itself through a collection of data from previous interactions.[ii] The next concept we must look into is mediation. Mediation is a third-party-driven negotiation where there is a neutral third party that helps resolve a dispute. This is a non-binding process that falls under the category of alternate dispute resolution or out-of-court settlement. The benefits of mediation are that it is a confidential process that is preferred by companies and even in family disputes. This process looks into the merits of a case and the interests of each party in the dispute.[iii] In this paper I shall first analyse the relation between AI and Mediation. Subsequently, I will look into some AI programs that already exist in the field of mediation and how they function. Further, I shall look into some other areas where AI may be used to further simplify the process of mediation. Lastly, I shall delve into the benefits and problems that AI may have, while being used for the process of mediation III. The interrelation between Artificial Intelligence and Mediation AI is still a developing concept, and thus there is not much practical use of it yet in the process of mediation. Mediation has many components where AI will reduce the human element. The main aim of mediation is dispute settlement, and through AI, this can be made easier and quicker. Initially, online mediation included only communication through emails and a platform for video – conferencing. This was more or less the same as in-person mediation and did not involve any significant change to the functions of the mediator or to the duties of either party. But over time, this has changed. There have been developments where software has begun taking over certain functions of the mediator. Some software has been developed to help the parties identify the strengths and weaknesses of their case and understand a possible solution.  IV. Existing programs in mediation There have been many noteworthy programs in mediation. They have helped settle disputes in many ways and simplified the process. Some are: i. SmartSettle SmartSettle is an advanced system that can support many parties that have goals that differ from each other or are in conflict. It can resolve high-level disputes that parties may have. SmartSettle acts as a qualified mediator for parties that may not be familiar with the process. It uses mathematical formulae to improve the dispute\’s outcome by taking into consideration the various priorities a party may have.[iv] Each Party must enter the various considerations it has. This is not disclosed to the other party and thus keeps the same level of confidentiality as the traditional mediation process has. The considerations may be either position, which is the stand a party takes on a particular issue, or the interests each party may have, which is the reasoning behind holding such a position. The process also requires parties to enter the optimal outcome for them. The parties must again enter their acceptable range for agreement on each issue known as the Zone of Possible Agreement.[v] SmartSettle has many ways at which an agreement may be arrived. The traditional method, where offers are exchanged and counter–offers are made to reach a solution. They may also have the software, consider all the parties\’ entries and come up with the optimal solution. The program also caters to a situation where the parties may reach a roadblock. The program may be asked to resolve it, and it will put forth a proposal it thinks would be beneficial to both parties. Lastly, the software in the final stage of the mediation may also make suggestions that bring about a further optimized solution which the parties may not have considered. If the parties are satisfied with the same, they may end the process and consider the settlement a success.[vi] ii. Family Winner In Family Winner, the program uses both game theory and heuristics. This program presents essential values to show the amount to which each party wishes to be awarded the issue being considered. The program takes information from the parties and uses it to make trade-off rules, which are then used