Selling and buying of products and services online, though gaining impetus, has also led to many online disputes. However, the parties can settle down their disputes through online dispute resolution…
Electronically concluded contracts between parties without physically meeting each other are broadly referred as electronic commerce operations. There are similar stages of offer and acceptance, which is, at times, prolonged by the electronic execution of the contract, as it involves opening access to a database, downloading software and transmitting an item of information. Improper execution of the contract, quality or nature of goods, not being in conformity with the goods ordered electronically, are one of the several factors of dispute between the parties and delays too, are sometimes the causes of dispute between the parties. More specific disputes may arise out of communication through computer. For instance, it becomes difficult at times to determine what time the offer was alive and thus, could be accepted.
In case of the Internet, disputes may also arise, which do not originate out of a contract. For instance, if a piece of software, which is downloaded from the Internet, allows third parties to access the personal data of a person due to a security failing, helps them in downloading the data and then making his personal data on computer available through the Internet to other persons while browsing the Internet, it leads to an incursion of privacy. At times, misleading or wrong information about a product, company or service may become cause of a dispute.
In all such cases, the normal forum of dispute, that is courts or alternate dispute resolution methods like arbitration, may help but the problems like jurisdiction or substantial law of which country is to be applied cannot be lost sight of. Online dispute resolution in such a case may serve as an important tool of settling the dispute, which may well be said to be another method of Alternate Dispute Resolution (ADR).
Like in case of other ADRs, the parties have to be sure that the subject matter of the dispute is capable of settlement through ADR under the law of the land and secondly, the rules of the body chosen to settle the dispute need to be verified to ensure that they are not restricted to one particular type of player (that is business or consumer). Further, the mode of dispute resolution should always be specified to define the obligations of the parties and should lay down sanctions for non-fulfilment of those obligations.
Online dispute resolution method is implemented through automated settlement assistance systems. The method removes the need of the parties (or their legal representatives) to meet physically, as it replaces these meetings with electronic exchanges. Each party to the dispute assesses the value of his claim and sends it to the automated system. Using methods of calculation and criteria known to the litigants, the computer suggests a price, when the difference is not too great, on which the parties can agree. This mode of settlement works only in case of disputes involving money.
In the matters where any sum of money is not essentially involving, or where the sum suggested by computer is not acceptable to parties, information technology has led to the evolution of online mediation and conciliation techniques. Mediation or conciliation techniques are more helpful in case of disputes involving provider and consumer. The conciliation or mediation body tries to bring the conflicting parties together so that they can arrive at an agreement, which is then formalised in a settlement agreement. While the mediator or conciliator does play an active role, he or she cannot impose an agreement on the parties. This impediment or facility, depending on how one views it, exists in case of mediation and conciliation techniques otherwise also that no conciliator or mediator can impose its decisions on either party, and the only acceptable solution is by way of a settlement agreement.
Arbitral institutions provide for a partial or total electronic procedure, more so in case of contractual disputes involving business deals. Information technology also provides for arbitration procedure, where the dispute is resolved through assistance of the arbitrator. The Internet makes possible the remote administration of the arbitral procedure and does not require the attendance of the parties, or their legal representatives. For example, if a contract party complains about the non-performance of a contract, the adjudicator merely has to confirm non-performance.
There is one last type of online dispute resolution, which helps in resolving disputes of cyber-squatting. Cyber-squatting is a situation, when owners of trademarks are unable to register their domain names because some other operators have registered those names in bad faith. The aggrieved parties can refer the matter by electronic means to one of the organisations, approved by the Internet Corporation for Assigned Names and Numbers (ICANN) for having the disputed domain name transferred or deleted. In disputes relating to registration of domain names, the panel members have to confirm that the claimant is the owner of the trademark and that the respondent made a bad-faith registration.
In online dispute resolution, the parties have to bear the operating cost, which is too small in comparison of costs involved in a normal litigation. Online dispute resolution, like other ADRs, reduces the costs of dispute resolution and is preferred for its confidentiality, speed, enforceability of awards, and to rule out the uncertainties in the choice of adjudicator and forum.
It offers the parties control over proceedings to conduct. Since the parties are not in physical presence of each other, it takes the emotion out of the dispute and encourages a cogent settlement. Further, it encourages better enforcement of the solution, recommended or imposed by the chosen institution.
In online dispute resolution, the instantaneous circulation of information reduces the time. Further, circulation of information on the Internet makes the defaulting party apprehensive of bad publicity in the electronic market. Once the arbitrator or conciliator or mediator is acquainted with the facts and issues, he passes the award. The parties merely have to interact with the adjudicator through the Internet to the website of the chosen organisation and present one’s case and data messages for the cost of a local phone call.
However, matters involving complex questions of law or mixed questions of fact and law may be difficult to resolve at times through online dispute resolution. Further, electronic non performance is not always easy to establish. When a software publisher or database owner does not supply the necessary access code, presumption of non-performance can be taken against him. However, no such presumption can be taken where it becomes difficult to decide whether the fault lies in software or the operating system.
Mediation, conciliation or arbitration, whatever is the mode of resolution opted by the parties for online dispute resolution, it places obligations on parties, which are sanctioned by law. Electronic mediation and conciliation present lesser problems, as only a decision acceptable to both the parties is passed but electronic arbitration is contentious because of the various demands imposed by national laws and international agreements, as it needs to be established whether electronic arbitration satisfies the conditions of the law or of international agreements.
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