Open Access Research Article
ASSESSING THE ENFORCEABILITY VIABILITY OF REDIRECTING E-COMMERCE DISPUTES ACROSS BORDERS AND DOMESTICALLY TO ADR MECHANISMS
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Article Details
ASSESSING THE ENFORCEABILITY
VIABILITY OF REDIRECTING E-COMMERCE DISPUTES ACROSS BORDERS AND DOMESTICALLY TO
ADR MECHANISMS
AUTHORED BY - GEETHU SACHITHANAND
& ASHISA RAJA
ABSTRACT
Exorbitant legal fees,
relationship-destroying squabbling and acrimony, and the shortcomings of
present private international law all contribute to significant delays in the
resolution of these issues. E-Commerce conflicts are better resolved through
ADR (Alternative Dispute Resolution). ADR refers to resolving disputes outside
of court. Information technology and alternate dispute resolution, when
combined, have created a new system that is more efficient, adaptable, and
affordable in comparison to conventional methods. Online Dispute Resolution is
the name of the tool (ODR). In order to resolve E-commerce disputes, this
article will analyse ADR and ODR processes with respect to the current growth
in the use of the internet and E-commerce.
E-commerce, or electronic commerce,
is the practise of conducting business through the internet using computers
that are connected to one another to form a network. It is one of the most
important aspects of the internet that has recently come into existence. The
same is true for online transactions as it is for off-line transactions, where
issues and disagreements multiply as the transactions' scope widens. In other
words, as the volume of e-Commerce transactions grows, e-disputes will
inevitably occur. In order to ensure that all parties feel confident taking
part in e-commerce transactions, it is essential that e-disputes are properly
settled. This is because firms and consumers may both be discouraged from
making online transactions of goods or services due to ambiguity about the
legal environment. It's important to note that while arbitration can be a
faster and more cost-effective way to resolve disputes compared to going to
court, it does have its limitations. The parties may not have the same
procedural rights or discovery tools as they would in court, and the
arbitrator's decision may be final and binding, with limited opportunities for
appeal.
HYPOTHESIS:
1. There is a necessity of adopting ADR
for Disputes which is cross border in nature owing to the fact that it will be
more favourable to the parties.
2. Facilitating the ADR Mechanism for
e-commerce disputes would change the perspective of consumer engaging in
e-commerce.
OBJECTIVES:
The objectives of this research include the
following and the list is not exhaustive in nature.
1) To explore the chance of ADR
mechanism in solving the cyber-crimes and e-commerce disputes.
2) To understand how beneficial the
strategy would be from the perspective of the parties to dispute.
3) To outline the various constraints
which existing and thereby finding whether it can be mitigated or not.
RESEARCH METHODOLOGY:
The Research project is centred
around theoretical assessment, comparative study, and analytical review to
determine the viability of redirection e-commerce disputes to ADR mechanisms.
The research methodology adopted by the researchers while writing this research
article is the doctrinal method. The researchers would rely on the normative
study of various primary and secondary sources. The primary source is statutes,
and judicial precedents and the secondary resources such as books, articles,
essays, journals, research reports, and online databases would be analysed as a
part of the research.
TENTATIVE CHAPTERS
The Research paper would consist of 5
chapters broadly divided as
1) INTRODUCTION
2) CHAPTER 1: COMMERCE, ECOMMERCE AND ARBITRABILITY
OF E-DISPUTES.
1.1)
Evolution
of ecommerce with respect to rapid invasion in e-market because of internet
1.2)
Are
these disputes arbitrable in nature.
1.3)
Does
allowing such disputes to be arbitrable, violate the law of the land?
3) CHAPTER 3: IMPLEMENTATION AND
TECHNICAL ASPECTS.
3.1) The necessity of adopting ODR
for e-commerce disputes.
3.2) Worldwide acceptance of this
mechanism.
ADVANTAGES AND DISAVANTAGES OF
REDIRECTING E-COMERRCE DISPUTES TO ADR MECHANISMS
4.1) Advantages
4.2) Disadvantages
CHAPTER 5: CONCLUSION
LIST OF REFERENCES
1) Dr. Mrs.K. Sita Manikyam, Cyber
Crimes Law and Policy Perspectives (2009).
2) Om Prakash Gusai, Cybercrimes
and cyber laws, Indian and International perspective (1st ed. 2019).
3) Esther van den Heuvel, An
Introduction to ODR, ONLINE DISPUTE RESOLUTION AS A SOLUTION TO
CROSS-BORDER E-DISPUTES (2000).
4) Sylvia Mercado Kierkegaard, Legal
Conundrums in Cyber-Arbitration, International Conference e-commerce.
(2004).
5) E. Casey Lide, ADR and
Cyberspace: The Role of Alternative Dispute Resolution in Online Commerce,
Intellectual Property and Defamation, 12 Ohio State Journal on Dispute
Resolution (1996).
6) Kunal, Kishor, Importance of ADR in
the Current Indian Scenario (December 6, 2011). Available
8) Riddhika Somani, IS CYBER
ARBITRATION LEGAL? White Code via Media and arbitration, (Nov. 1, 2020).
9) Online ADR - An Avenue for Resolving
Disputes in Cyberspace, UMLR | University of Malaya Law Review (Jan. 18, 2018), https://www.umlawreview.com/lex-in-breve/online-adr-an-avenue-for-resolving-disputes-in-cyberspace.
10) Joy & Ajith, Programme
Guide-Post Graduate Certificate in Cyber Law (PGCCL) (2020).
11) Anand Kumar Singh, “Arbitrability of
Disputes in India: The Changing Landscape of ‘Exclusive Jurisdiction’ Discourse”,
7(1) NLUJ Law Review 70 (2020), available at http://www.nlujlawreview.in/wp-content/uploads/2020/09/71-NLUJ-Law-Review-70-2020.pdf.
CHAPTER-1
INTRODUCTION
Ever since the invention of
technology and the digital revolution or the third Industrial revolution
(1975-2021), the world has seen great ups and downs in the legal system governing
the cyber-space, from its enforcement to the working of the judicial system
itself. In the current era of technology has grown in such abundance that,
ninety-six percent of the world’s population has implemented one or more among
the 18 core technologies of interest, most commonly car cameras (70% of
agencies), information-sharing platforms (68%), and social media (68%).[1] The easy
accessibility to the internet in the current era can be understood through an
example of how even small children use smartphones and other smart devices in
their day-to-day life and interact with content in cyberspace. The world’s
dependence on the internet leaves no room for doubt that such dependence on
technology will inevitably increase the number of crimes caused and such crimes
will have alarming rates. This is true in the present scenario as well. So,
addressing the crimes and making sure that the justice system hasn’t been
adversely affected by the rapid growth of technology is necessary and should be
given paramount importance. Our focus through this research paper ideally
revolves around the use of ADR mechanisms to tackle more efficiently and
effectively the problem that has been stated and for the adjudication of crimes
that are taking place due to the vast use of the internet and the disputes
arising out of it. Since the scope of disputes arising out of the use of the
internet and because of the divergence of crimes that array under the ambit of
technology, we as the authors have focused our research paper on one such area.
That is E-commerce.
Businesses across the world now have
the opportunity and the ability to reach a multitude of customer groups with
their products and services because of the accessibility and growth of the
Internet even in areas that are remote. E-commerce refers to the exchange of
products and services as well as the movement of money digitally. E-commerce,
or electronic commerce, is the practice of conducting trade through the
Internet using computers and other mobile electronic devices that are connected
to the world wide web. Such transactions are one of the most important
aspects/usages of the internet that has recently come into existence.
E-commerce has grown to be the most significant marketing channel across all
business sectors.[2] Therefore,
the authors found it fit research subject to analyze the pros and cons of
having ADR as a primary method of adjudication in disputes arising from it.
It is common knowledge that the
current judicial system is very costly and cumbersome. Years pass while the
parties to a dispute wait for justice. Alternative remedies offer quick and
inexpensive justice, and for this reason, disputing parties choose ADR
mechanisms to settle their issues. ADR can be used to successfully resolve a
wide range of issues, including consumer complaints, marital problems,
construction disputes, and business disputes. It can be applied to nearly any
disagreement that can be brought before a court as a civil dispute. ADR is now
widely used as a primary method of dispute settlement in many jurisdictions,
rather than as an option. ADR has become so popular that some have advised
doing away with the adjective entirely and simply using the term "dispute
resolution" to refer to the current spectrum of dispute settlement
options. In the current era with the rapid increase in the use internet and the
transaction from commerce to e-commerce the number of legal disputes has also
increased, similarly the cybercrime is proportionally increasing with the
growing technology. Mostly, internet crimes are not reported either because the
victim did not discover them, or because of fear of defamation. Therefore the
authors would like to show how deviating e-commerce disputes and cyber-crimes
to ADR mechanisms would significally decrease the burden of the court.
CHAPTER-2
COMMERCE, ECOMMERCE AND ARBITRABILITY
OF E-DISPUTES.
E-commerce, short for
"electronic commerce," refers to the buying and selling of goods and
services over the internet. E-commerce encompasses a wide range of activities,
including online shopping, online banking, online auctions, and online
marketplaces, among others.
E-commerce has become increasingly
popular in recent years due to the growth of the internet and the rise of
mobile devices, which have made it easier for people to shop and conduct
business online[3].
E-commerce offers a number of advantages over traditional brick-and-mortar
retail, including lower overhead costs, the ability to reach a larger audience,
and the convenience of shopping from anywhere at any time.
E-commerce transactions can take a
variety of forms, including business-to-consumer (B2C), business-to-business
(B2B), consumer-to-consumer (C2C), and consumer-to-business (C2B). Some
examples of e-commerce sites and services include Amazon, eBay, Alibaba, PayPal,
and Shopify.
E-commerce presents a number of
challenges and opportunities for businesses, including the need to create a
user-friendly online store, optimize product listings for search engines,
manage customer data and payment processing, and ensure the security of online
transactions. As e-commerce continues to grow, businesses will need to stay
up-to-date with the latest trends and technologies in order to remain
competitive in the digital marketplace.[4]
1.1)
Evolution of ecommerce with respect to rapid invasion in e-market because
of internet.
The evolution of e-commerce has been
closely tied to the rapid growth and adoption of the internet. Since the early
days of the internet, businesses have been exploring ways to leverage the power
of the internet to reach customers and conduct business online. Here's a brief
overview of the evolution of e-commerce as a timeline:
- The early days: In the 1990s, the internet was
still in its infancy, and e-commerce was largely limited to a few early
pioneers, like Amazon and eBay. At this stage, e-commerce was largely seen
as a novelty, with most people still preferring to shop at
brick-and-mortar stores.
- The dot-com boom: In the late 1990s and early
2000s, the internet experienced a massive surge in growth, with many
companies rushing to establish an online presence. This period saw the
rise of many new e-commerce companies, as well as the emergence of new
business models and technologies.
- The post-dot-com era: Following the collapse of
many dot-com companies in the early 2000s, e-commerce began to mature and
consolidate. During this period, larger, more established companies like
Amazon and eBay emerged as dominant players in the e-commerce space.
- The mobile revolution: With the rise of
smartphones and other mobile devices, e-commerce has undergone another
major shift, with many consumers now preferring to shop on mobile devices.
This has led to the development of new mobile-specific technologies and
the rise of mobile commerce (m-commerce).
- The future of e-commerce: Looking ahead,
e-commerce is likely to continue evolving and adapting to new technologies
and changing consumer preferences. Some potential future trends in
e-commerce include the rise of voice commerce, the use of augmented and
virtual reality, and the integration of e-commerce with social media
platforms.
Overall, the rapid growth and
adoption of the internet have had a profound impact on the evolution of
e-commerce, and it's likely that e-commerce will continue to play an
increasingly important role in the global economy in the years to come.[5]
1.2)
Are these disputes Arbitrable in nature.
Arbitrability of e-commerce disputes
refers to the ability of parties to resolve their disputes related to online
transactions through arbitration. In general, the arbitrability of a dispute
depends on the applicable laws and regulations, the terms of the contract
between the parties, and the subject matter of the dispute.[6]
In the context of e-commerce, many
companies include arbitration clauses in their online terms and conditions or
user agreements. These clauses require users to resolve any disputes related to
their online transactions through arbitration, rather than going to court. In
many cases, these arbitration clauses are enforceable under the law.
However, there are some limitations
on the arbitrability of e-commerce disputes. For example, in some
jurisdictions, consumer protection laws may require certain disputes to be
heard in court, rather than through arbitration. Additionally, some disputes
may be considered to be outside the scope of the arbitration agreement, such as
disputes that involve criminal activities or public policy issues.
It's important to note that while
arbitration can be a faster and more cost-effective way to resolve disputes
compared to going to court, it does have its limitations. For example, the
parties may not have the same procedural rights or discovery tools as they
would in court, and the arbitrator's decision may be final and binding, with
limited opportunities for appeal.
Ultimately, whether or not e-commerce
disputes are arbitrable will depend on the specific circumstances of each case,
including the applicable laws, the terms of the contract, and the subject
matter of the dispute.
1.3)
Does allowing such disputes to be arbitrable, violate the law of the
land?
E-commerce has become more global in nature,
the question of the arbitrability of e-commerce disputes has become
increasingly important. Arbitration is a form of alternative dispute resolution
in which an independent third party, known as an arbitrator, is appointed to
resolve a dispute between two or more parties. The arbitrator's decision is
usually binding, and can be enforced by a court of law. In general, the
arbitrability of e-commerce disputes is determined by the applicable law in
each jurisdiction. Many countries have laws that recognize the validity of
arbitration clauses in e-commerce contracts, and allow parties to resolve
disputes through arbitration.
For example, in the United States,
the Federal Arbitration Act (FAA) governs the enforceability of arbitration
clauses in contracts, including e-commerce contracts. Under the FAA, courts are
required to enforce arbitration agreements unless they are found to be invalid,
unenforceable, or unconscionable. Similarly, in the European Union, the EU
Directive on Certain Aspects of Mediation in Civil and Commercial Matters
provides a framework for the recognition and enforcement of mediation
agreements in cross-border disputes, including e-commerce disputes.
However, there are also some
countries and jurisdictions where the arbitrability of e-commerce disputes is
more restricted or subject to specific requirements. For example, in some
countries, consumer protection laws may limit the enforceability of arbitration
clauses in e-commerce contracts.
Overall, the arbitrability of
e-commerce disputes will depend on a variety of factors, including the
applicable law, the specific terms of the contract, and the nature of the
dispute itself. As e-commerce continues to grow and evolve, it is likely that
the question of the arbitrability of e-commerce disputes will continue to be an
important issue for businesses and consumers alike.
Whether allowing e-commerce disputes
to be resolved through arbitration violates the law of the land will depend on
the specific laws and regulations of each jurisdiction.
In some jurisdictions, there may be
specific laws or regulations that prohibit certain types of disputes from being
resolved through arbitration. For example, some consumer protection laws may
limit the enforceability of arbitration clauses in e-commerce contracts.
In other cases, allowing e-commerce
disputes to be resolved through arbitration may be consistent with the law of
the land, as long as certain procedural safeguards are in place to ensure
fairness and protect the rights of consumers.
In general, the enforceability of
arbitration clauses in e-commerce contracts will depend on a variety of
factors, including the applicable laws and regulations, the specific terms of
the contract, and the specific circumstances of the dispute. It is important
for businesses and consumers alike to carefully review the terms of any
e-commerce contract and seek legal advice if they have questions or concerns
about the enforceability of arbitration clauses.
CHAPTER-3
IMPLEMENTATION AND TECHNICAL ASPECTS
Even though we came to a conclusion from
the previous chapters on whether the e-commerce disputes are arbitrable or not,
the next most important question which need to be addressed is the
implementation of such an aspect in countries like India, where the e-commerce
disputes are considered as crime against the society.
3.1) The necessity of adopting ODR
for e-commerce disputes.
ODR, an alternative dispute
resolution method, uses technology to accelerate the resolution of disputes
between parties. The three primary parts are negotiation, mediation, and
arbitration, or some combination of the three. It is commonly thought of in this
sense as the internet's equivalent of alternative dispute resolution, or ADR.
Yet, ODR can also support these traditional approaches to conflict resolution
by bringing cutting-edge techniques and online technologies into the process.[7]
Whenever we engage in e-commerce
transactions, one of the purposes of people choosing such a method to buy or
sell goods online is the convenience and ease of purchase. Keeping this in
mind, the authors wonder if “disputes arising in the e-commerce space also
be resolved through or on the internet?”.
If the pandemic has taught us
anything about the internet it is that it is a comprehensive and effective tool
to keep economies and the marketplace from crashing. During this period people
have resorted to shopping online and have also grown to be comfortable in their
own homes without it effecting their day-day life and this is what is referred
to as the “new normal”. The people of this era are very dependent on the
internet for various activities and do so because of how convenient it is, if
given the option most people would prefer to skip long waiting periods in
courts and shift to Alternate Dispute Resolution methods that are quick, ODR is
one such method wherein companies and consumers can resort to Online Dispute Resolution
which mitigates disputes on the internet without a lot of hassle and is
cost-effective and consumes less time. The applicability of the same depends on
the trust that must be built around the ODR mechanism. While many people use
the internet, they are slow to trust the internet in terms of sensitive
information this can be tackled by having an understanding of how reliable and
practical ODR solutions are. Users will have more faith in the system and its
recommendations or decisions if all ODR developers create their systems in
accordance with a global standard. ODR developers can also be sure that their
products are offering a fair service and consumers and organizations using ODR
can be sure that their clients will resolve disputes fairly and without the
need for additional, costly recourse.
3.2) Worldwide Acceptance of this
mechanism
Stakeholders are becoming more
dissatisfied with the traditional, adversarial judicial system as electronic
commerce transactions expand quickly, and are looking for alternatives to
settle disputes and address problems arising out of E-commerce transactions.
The "old" litigation system's qualities, such as endless motions,
drawn-out procedures, procedural wrangling, and years of deliberation and
waiting for a decision, are not typically present in alternative dispute
resolution (ADR).[8] The
e-commerce business was initially propelled forward by major online sales
platforms like Amazon, eBay, Alibaba, and others. However, an increasing number
of offline companies are utilising the e-commerce opportunity and operating
their own online storefronts. These websites handle a variety of sales, not
just low-risk ones. In such a scenario, the chances and opportunities for
disputes are infinite and the possibility of the same is guaranteed. The traditional court mechanism should not be
an ideal option for these kinds of disputes as businesses majorly run on having
good relationships with the consumer base and maintaining goodwill to be
maintained for further symbiotic interactions. The parties would not only be
more satisfied with the outcome by avoiding the winner-take-all aspect of
litigation, but they would also not have to wait or go through the tiresome
process of adjudication in order to receive a decree if they choose to use ADR
mechanisms as their primary dispute resolution mechanism.
By strengthening consumer protection
rights and easing their implementation, national and supranational legislators,
such as the EU, are eager to support and advance this economic trend.[9] Since this
paper analyses the applicability globally, let’s explore the few countries
which have already tried to incorporate the ADR in e-commerce disputes.
EUROPIAN UNION:
The ADR Directive and ODR Regulation
were enacted by the European Union in 2013 to strengthen e-commerce within the
EU. The EU has laid the groundwork for an ADR over the Internet via the ADR
Directive and ODR Regulation. For the purpose of resolving disputes between
e-commerce businesses and clients, the ODR Regulation's ADR programme was
established. Therefore, the ODR platform does not have sole jurisdiction.
Before participation in the ODR programme may be agreed upon, a legal agreement
must be made. This is great since click-and-wrap contracts with businesses that
primarily operate online might include ODR terms.
THE UNITED STATES OF AMERICA:
Anita Ramasastry of the Center for
Law, Business, and Technology at the University of Washington has been added to
the task committee on e-commerce and alternative dispute resolution of the
American Bar Association. (ADR). Rules for settling disputes in e-commerce are
also being developed by the American Bar Association. In June 2000, a public
workshop was organised by the Federal Trade Commission and the U.S. Department
of Commerce to discuss ADR for online consumer transactions. The summary of the
public workshop provides a thorough examination of the ethical, commercial, and
legal issues that arise in conflict resolution in the new economy. Finding
international solutions, encouraging technical advancement, investigating a
range of ADR programs, ensuring fairness and effectiveness, educating consumers
and businesses, and taking action against dishonest or deceptive activities are
some of the goals.
RUSSIA:
Revenue in the E-commerce market is
projected to reach US$42.46bn in 2023. Since there are no special courts
or other venues in Russia which deal with online or digital issues and
disputes, ADR is one of the mechanisms which was adopted for online disputes
for the very reason that it would primarily decrease the burden of the court.
Arbitration for business disputes may be used online and for digital issues.
Both ad hoc and institutional arbitration are permitted by Russian legislation.
If parties specifically agree to it in a contract, the Universal Domain Name
Dispute Resolution Policy may be utilized to resolve domain name disputes.
CHAPTER 4
ADVANTAGES AND DISAVANTAGES OF
REDIRECTING E-COMERRCE DISPUTES TO ADR MECHANISMS.
4.1) Advantages:
In
an E-commerce dispute Parties can hail from any part of the world. If they
choose to proceed legally then it becomes a task to decide where such a
proceeding would take place and what law would apply but that would be
mitigated if it is redirected to ADR mechanisms as in this case the parties
would decide what forum would be the most convenient and what law would apply,
it completely removes any room for ambiguity or confusion if the contract
drafted in accordance with all the parties to a dispute.
The parties do not have to worry about:
1. Jurisdiction of courts
2. The long number of years it takes to
finish one particular case.
3. They do not have to worry about
sensitive information being disclosed.
4. Privacy is given paramount
importance.
All of this is done while maintaining
the relationship previously created and it will significantly be cheaper if
they choose to ODR as a dispute resolution method. These options are not
available to parties when the only option they have is traditional method of
dispute resolution.
Other reasons to opt for this would
be
1. Economic viability: Cost is one of the most significant
factors in conflict resolution since both parties ultimately want to come to
the best decision for the least amount of money. Online ADR best satisfies both
parties' financial needs. Emai is the primary method of document exchange in
online proceedings, as opposed to fax and postal service. Therefore, compared
to litigation, where paperwork is both expensive and extensive, electronic
transfer of papers is not only simpler and faster, but it is also less
expensive. The fact that
parties do not have to travel great distances in order to resolve conflicts is
one of the most well-known advantages. Online disagreements can occur between
parties situated in different countries; in that case, offline dispute
resolution would need at least one of the parties to visit. The parties might
not be able to settle the disagreement because of the associated travel and
lodging expenses. However, online conflict resolution equalises the playing
field for all parties. When compared to offline litigation, where wealthy
litigants may easily be able to afford for travel and lodging for their
lawyers, witnesses, and themselves, while the opposing litigants may not, it is
unconcerned with the financial capacities of the parties.[10]
2. No confusion in choice of law or
jurisdiction: The
question of jurisdiction is one of the most difficult ones the Internet has
brought up. An injured party may not be able to seek legal redress without
travelling to the location of the cause of action or the wrongdoer's residence
or place of business because formal sources of dispute resolution, such as
litigation, are constrained by concepts of legal sovereignty and comity. Who
decides which nation has jurisdiction, however, in the context of the
borderless Internet? How is this decided upon? How can one find out the
location of the wrongdoer's residence or place of business, furthermore?
Various theories and philosophies are being developed by nations to address
this challenge, which they are still grappling with. In the interim, online ADR is a
desirable solution to avoid jurisdictional issues because it is not only a
flexible and open medium. Parties engaging in online business can agree to have
disputes handled by an online ADR provider. The ability to record correspondence, pleadings, statements,
and any other written, verbal, or visual communication sent electronically is
another advantage of using online ADR. In particular, if the ADR process allows
for appellate review, the archiving of records and other online contact is not
only helpful but absolutely necessary.[11]
4.2) Disadvantages
Every coin has two sides and just
like it has advantages, shifting to ADR mechanisms also has a few draws backs,
such as:
1. Lack of Human Interaction and
Miscommunication: Before making a decision, the 3rd person has
"therapeutic conversations" with the individuals involved in the
dispute in order to better understand their worries, emotions, and feelings. Similar
to this, when the internet is used to resolve online conflicts, the parties may
confer without the 3rd party being aware. Sadly, even web cams or
video conferencing do not effectively alleviate this party estrangement. In a
webcam session, the subtleties of non-verbal communication are still missed.
The also deprived of the chance to assess the credibility of the parties and
witnesses due to the lack of face-to-face interaction. Internet communication is impersonal,
which could lead to misunderstandings between the parties. The recipient could
misunderstand the message even though the sender can sufficiently express
themselves in writing. A disputing party may potentially sabotage the procedure
by ignoring emails or chat requests. Due to this, it is nearly impossible for
the ADR provider to tell the difference between a real technical issue and an
uncooperative party. When parties are in separate nations and speak different
languages, this is especially likely to happen.[12]
2. Inadequate security or
confidentiality: As "stranger-to-stranger" commerce, which is how
e-commerce initially developed and still predominates today, transaction and
communication security and confidentiality are among the top issues.
Additionally, one of the
fundamental elements that distinguishes ADR from litigation is confidentiality.
Since all information utilised in mediation and settlement negotiations is
designed to be kept fully confidential, nothing from these processes can be
used as evidence in court. The privacy of their proceedings and the privacy of
any personal information they submit to ADR providers before, during, or after
the procedures is of utmost significance to users of ADR. Inadequate Internet security has been a
significant barrier to the expansion of e-commerce and may directly affect the
usage of online ADR to resolve the same.
There are other concerns
enforceability of these decisions across borders, the execution of such a
decree and the insufficient accessibility and then there is also the problem of
how one must know to operate the internet before engaging in such an activity
is also a significant issue to be considered.
CHAPTER 5
CONCULSION
5.1) Suggestions:
No ADR mechanism or litigation along
with all the other types of ADR, is flawless. The goal is to seek to make these
processes better and lessen their flaws rather than to dwell on their
deficiencies and criticise them. The two parts before this one show that,
although online ADR may be a useful tool for resolving online disputes, there
are some issues that must be handled before the procedure is sufficiently
effective. Several legal scholars have proposed strategies for the successful
use of online ADR. Even online ADR systems have been suggested. The American
Bar Association developed a sample of such a model, which is presented in a
collection of suggested guidelines. The authors suggest the following after
analysing the information at hand.
1. Centralized online ADR system: A researcher proposed the creation of the Dispute Resolution
Referral Center (DRRC)[13],
a centralised online conflict settlement mechanism. In accordance with the
proposed DRRC, after receiving a complaint, the DRRC would review the complaint
and make suggestions to the disputants for appropriate online ADR service
providers. To carry out the decisions, it would rely on system administrators.
The DRRC's main benefit is that it would direct the complaint to the
appropriate party and enable a prompt, affordable, and effective decision.
Additionally, a unified body of law may emerge online, aiding in the regulation
of online disputes. Additionally,
because the DDRC will be running the online ADR service providers, if there are
significant increases in the volume of Internet disputes, the DDRC may get
overwhelmed and the system may ultimately fail. The DDRC should refer the
matter to independent service providers so that it can regularly assess their
effectiveness, since this has been deemed to be a better choice. The DDRC does,
on paper, appear to be a good framework within which to operate, but only time
will tell whether such a centralised organisation can grow and resist the
constantly shifting needs of cyberspace.
5.2) Recommendations:
Clear terms and conditions by E-commerce
websites: Each online business, whether it be
an auction site, an online retailer, an online service provider, or an Internet
banking website, should explicitly state the rules and regulations that apply
to its operation and to the behaviour of its customers. The warranties,
responsibility, consumer rights, and privacy provisions must all be
specifically addressed in the terms and conditions. The technique of
dispute resolution that may be used in the event of an online dispute should
also be specified. E-businesses can boost customer confidence by outlining
these problems. Before using the website, customers can also learn their rights
and obligations and the remedies available to address any subsequent
complaints.
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Article Information
ASSESSING THE ENFORCEABILITY VIABILITY OF REDIRECTING E-COMMERCE DISPUTES ACROSS BORDERS AND DOMESTICALLY TO ADR MECHANISMS
Authors: GEETHU SACHITHANAND, ASHISA RAJA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/06
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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