IMPACT ON THE FUNCTIONALITY OF DISPUTE RESOLUTION MECHANISM AMID COVID-19 PANDEMIC: AN ANALYSIS
Updated: Aug 3, 2020
This article has been authored by Monalisa Choudhury, a third year student at National Law University and Judicial Academy Assam
In recent decades, the various conflict resolution approaches have become a widely accepted field with official and/or legislative functions in many countries. In international relations, they play an increasing role in containing, managing and resolving potential sources of conflict.
It is beyond dispute that, the current Court System suffers major setbacks due to certain lacunae prevalent in its functional system. The processes adopted in ADR proceedings are far more workable and respectfully informal than those of a traditional court.
According to Retired federal Judge Vaughn Walker, there is hardly any scope for the industry of alternative dispute resolution to switch back to the way things persisted before. The counsels, as well as neutrals, are compelled to restrict themselves to their respective homes. The present anomalous condition has made it crucial for every industry to modify their ways of working to get acquainted with the new normal.
The article seeks to provide an analysis of the functionality of ADR mechanisms on account of the present situation. The recent developments along with the initiatives taken up by different institutions shall be discussed precisely.
Collaboration & Joint Statement among Institutions
The International Federation of Commercial Arbitration Institutions (IFCAI) along with various arbitral institutions in collaboration with issued a joint statement on 16.04.2020. The statement has been issued to make the parties, as well as arbitrators, contribute collaboratively. The aforesaid collaboration emphasizes the efforts of the institutions to remain in operation. Special arrangements have been put in place to enable staff members to work remotely. The President of ICC Court of International Arbitration Alexis Mourre in the joint statement said that it is a time for solidarity. It is the need of the hour to make certain that arbitral institutions play a major role in mitigating Covid-19 hindrances.
To get acquainted with the new normal, several institutions have decided to work via online coordination. The institutions require that requests for arbitral proceedings be filed via digital platforms.
The parties, as well as the arbitrators, have been recommended to utilise the regulations of their respective institutions. In addition to regulations, strategies of dealing with cases need to be considered which shall assist the dispute resolution proceedings to forge ahead with a better pace.
Increase in Online Dispute Resolution amid the Covid-19 Pandemic
Due to already existing arrears as well as developments in COVID-related disputes, the ADR mechanisms seem to be in preferential terms in averse to tedious judicial proceedings. Newer modes of telecommunications, as well as mechanics, have been adopted by the arbitration community over time. The technological know-how adopted shall certainly act as a fruitful tool in ascertaining efficacious functionality of ADR mechanisms. The formation of the following ODR platforms has facilitated the functioning of ADR Mechanisms to a possible extent:
CADRE has simplified the regulations of arbitration. The ADR process has been made more swift, affordable as well as completely virtual. The CADRE works with a group of arbitrators trained according to the rules set by CADRE.
CORD offers dispute resolution and associated services in a modular fashion that allows the parties to avail them independently. It is not only affordable but also makes sure that the stakeholders of a dispute get their varied dispute resolution needs to be addressed in one place. Wherever necessary, case managers are provided to assist the neutrals as well as the parties to regulate hearings. Consequently, cases are managed in an efficacious manner. The productive use of technology makes the process objective, speedy as well as approachable.
SAMA is a new way to resolve disputes between businesses and customers, employers and employees, landlords and tenants, professionals and clients, or anyone else – fully online, in a fast and cost-effective manner. Spaces for people to be heard are created where the parties to the dispute can expect a viable solution. Latest modes of telecommunications are intensively used by a generation of skilled professionals. This makes the process of dispute resolution swift as well as effective.
AGAMI curates and catalyses ideas that go beyond the constraints of the system and become solutions that scale to achieve impactful results. The organization has a collaborative as well as a transparent approach towards resolving disputes. It is ensured by AGAMI that there is the availability of productive as well as affordable legal resources to everyone.
It is noteworthy to mention that case management conferences are being regulated via video conferencing which is the need of the hour today. Depending upon the same technology of video-conferencing, the remote cross-examination of some experts as well as witnesses have been made possible. For international arbitrations, the trial presentation and maintenance of depository of electronic documents are indeed a practical approach and the same is expected to be the new normal for domiciliary arbitration proceedings in India.
Several initiatives have been taken up by the Indian government, on its part to keep a track of caseloads and stimulate the applicability of ADR mechanisms. One of the key initiatives includes enactment of New Delhi International Arbitration Centre (NDIAC) Act 2019. The enactment was done with a view of availability of qualified experts in India keeping in mind the criterion of affordability. The objective is to make India a hub for institutional arbitration. New Delhi International Arbitration Centre Ordinance, 2019, promulgated by President on 02.03.2019 was replaced by the NDIAC Act. The said Act was brought up to create a self-governing regime for institutionalized domestic and international arbitration. On account of the current pandemic situation, promotion of Online Dispute Resolution (ODR) by the government as a mode for expeditious adjudication of disputes is notable.
Though Online hearings in this pandemic are noteworthy and it shall be productive only if they are regulated in an organized manner. It is the need of the hour that tribunals, as well as parties, have a cooperative approach towards the mechanisms of online dispute resolution. This cooperative approach shall ensure that the current ADR process runs smooth enough. Given the sensitivity of the arbitrations, needless to say, is a mandate that cyber-security of the proceedings and personal data is maintained properly with negligible glitches.
Digitalization of ADR Mechanisms
The ADR community is being exposed to a greater amount of pressure and is expected to work at a much-accelerated pace. Frequent application of ODR or virtual hearings through contemporary technological equipment is the need of the hour. Prominent institutions primarily dealing with arbitration have come forward with the required apparatuses as well as recommendations. As per the updated Covid-19 measures at SIAC dated 23.06.2020 there has been an attempt to facilitate the delivery of physical copies of documents, where necessary. SIAC’s physical offices shall continue to be open twice a week from 10 am to 4 pm on Mondays and Thursdays each week until further notice. However, until SIAC’s physical offices become fully operational it has been suggested that communications are conducted virtually.
The ICC International Court of Arbitration has released a Guidance Note outlining a range of measures to help mitigate the effects of the COVID-19 pandemic on arbitral proceedings. The Guidance Note highlights factors relevant in assessing ways to mitigate COVID-19- related delays in the context of the ICC Arbitration Rules. The Note provides guidance on the chances of online hearings to be conducted.
To ensure continued effective case management, Article24(3) of the Rules provides that the tribunal may adopt appropriate procedural measures. Modification of the procedural timetable using a further case management conference or otherwise has been recommended.
The Secretariat of the Court ("Secretariat") on streamlining its processes to promote efficiency and avoid COVID-19 related delays:
The Secretariat’s communication of 17 March 2020 expressly required that new requests for arbitration (including pertinent exhibits) and other initiating documents be filed with the Secretariat in electronic form. The Secretariat thereafter promptly liaised with the claimant parties to ascertain whether notification of the feasibility of the request for arbitration by email.
Guidance on the possibility of Virtual Hearings by the ICC:
Tribunals are expected to ensure the parties that any video sharing platform that is used for virtual hearings is licensed and is set to maximum security settings. ICC possesses authorized access to teleconferencing platforms namely Microsoft Teams, VidyoCloud and Skype for Business. ICC technical support is available remotely to assist tribunals with using such platforms, joining a meeting (or hearing), operating in-meeting audio and video functions, and operating screen sharing functions. Zoom, BlueJeans and GoToMeeting are some other platforms in use to resolve cases by the ICC.
The query of time-bound proceeding has already been addressed by the Supreme Court of India vide order dated 23.03.2020 In Re: Cognizance For Extension Of Limitation owing to ongoing Covid-19 crisis the SC has considered the need for extension of the period of limitation and has thus passed the aforesaid order regarding the grant of extension of the same w.e.f. 15.03.2020 till further order/s to be delivered by the Court in present proceedings. For instance, Section 29A of the Arbitration and Conciliation Act, 1996 specifies passing of arbitral award within 12 months of commencement of a proceeding, and the same may be extended by 6 months subject to the discretion of parties to the dispute. Therefore, the order bounds any such proceeding falling short of limitation due to lockdown and still holds a possibility to file suits.
"Justice delayed is justice denied."
Nowadays, information technology and cyberspace are being used widely in ensuring proper administration of justice and the same is an inexorable craze. On account of the present situation, it has become crucial enough for the process of digitisation to be remarkably moved forth. The wiser use of technology may lead to an increased number of online hearings and proper usage of Artificial Intelligence shortly. It is imperative for judges, arbitrators, counsels, parties, arbitration institutions and courts to make themselves equipped enough to handle exposure to the contemporary developments in addition to giving their level best in facilitating reasonable as well as the equitable settlement of disputes as expeditious, economical, and systematic as possible.
The pandemic has engulfed over several countries along with India and restoration of routine life & procedures appears to be a distant dream. Needless to say, as these are unconventional times there is a dire need for unconventional solutions. Realizing this, a conducive testing ground for latest technological know-how applicable to courtrooms has been made possible by the recent Supreme Court Order: In Re: Guidelines For Court Functioning Through Video Conferencing During COVID-19 Pandemic dated 06.04.2020. The Order emphasizes the need to incorporate the practice of Virtual Hearings via Video Conferencing in compliance with the measure of social distancing. Information and Communication Technology systems have been included by the Indian Judiciary through the e-Courts Project as part of the National e-Governance Plan. The Concerned Courts are directed to maintain a helpline to facilitate communication regarding the audibility or quality of feed during the proceeding. Further, the Courts have been advised to make facilities for video-conferencing available to the litigants who are devoid of the same. Depending upon conditions, an amicus- curiae can be appointed by the Court to make the facilities of video-conferencing available to such litigants.
The effective implementation of technologies in the regular course of business is the need of the hour and it’s imperative to do away from the Supreme Court’s Urgent only requirement for using video conferencing. It is high time for courts to come up with the diligent application of online proceedings for all cases and promote Online Dispute Resolution, subject to its applicability.
There is no doubt that the current pandemic has compelled the entire legal industry to switch to a technology-driven approach thus bringing in the scope of digitalization in proceedings. Virtual hearing of cases with the help of updated telecommunications is one of the notable steps of the ADR community. There has been a sharp increase in the usage of ADR mechanisms to resolve cases.