NITI Aayog is evangelising the role of artificial intelligence-powered online dispute resolution (ODR) as a fourth party to mitigate arbitration, legal issues in the country’s judiciary, ministries, and its various departments. However, it admits that maintaining privacy and data security, and the country’s digital divide would be a challenge while working on ODRs. The public policy think tank of the Indian government made these observations and recommendations in a recently published report titled “Designing the Future of Dispute Resolution: The ODR Policy Plan for India”.
What exactly is ODR? ODR refers to the usage of information and communications technology (ICT) tools to enable parties to resolve their disputes, the report said. This includes a range of technologies from audio-visual tools, LED screens, etc. However, NITI Aayog stresses that its ambit goes way beyond that, and also includes the application of technologies such as AI and machine learning.
At a more advanced stage, ODR can work as the fourth party through the use of algorithmic assistance tools that help parties find resolutions. Such technology can take the form of intelligent decision support systems, smart negotiation tools, automated resolution, and machine learning. Eventually, ODR can also offer multi-door dispute resolution through tailored processes for specific parties and their dispute. — NITI Aayog report
Citing examples of the European Union and others, NITI Aayog’s report tries to justify ODRs as a solution to the judiciary’s long list of pending cases and the government’s myriad arbitration processes. But, setting aside the lack of data protection legislation, a worsening digital divide (as indicated in a recent government survey) raises a question of whether the Indian government should implement these proposals.
What NITI Aayog said about privacy in context to ODRs
While exploring the various applications of ODR in the Indian government, NITI Aayog pointed out the challenges surrounding privacy and data security, such as:
- Online impersonation
- Breach of confidentiality by the circulation of documents and data shared during ODR processes
- Tampering of digital evidence or digitally delivered awards/agreements.
NITI Aayog also recommended that artificial intelligence systems be allowed to analyse and observe dispute resolution in court-annexed centres, as it would help in developing datasets for specific dispute categories. “Such datasets can then be provided to researchers institutions and organisations to develop targeted technology solutions…,” the report said.
However, while recognising that such sharing of data may not be tamper-proof, NITI Aayog said, “The Government should notify appropriate privacy measures and responsibilities on researchers while processing and analysing such data.”
Recommendations by NITI Aayog to protect privacy during ODR
Amend IT Act, 2000: “There have been some legislations which recognise and regulate the use of technology namely the Information Technology Act, 2000 and the recognition of electronic evidence under the Indian Evidence Act, 1872.396 However, the Government can introduce amendments into these legislations to accommodate ODR processes and protect the data privacy, confidentiality, security and protection of rights of all parties,” the report said.
Bring in legislation on personal data protection: “The Government should also implement the personal and non-personal data protection framework through the establishment of a regulatory authority and a comprehensive legislation on personal data protection, after going through the necessary rigorous legislative drafting process,” the report said.
Apart from these two steps, NITI Aayog said privacy can be ensured by —
- Data minimalism
- Informed consent
- Security through encryption
- Trust via registries
- Digital attestation
- Frequent internal system audits
- Measures for the management of assets such as trade secrets and confidential information disclosed during proceedings and limiting access of information to authorised personnel.
What are the other challenges highlighted by the think tank?
Lack of proper digital infrastructure: “A pre-condition to ODR integration is robust technology infrastructure across the country. This includes access to computers..bandwidth internet connection for at least the length of time it takes to conduct meaningful hearings. The lack of such requirements is likely to disadvantage those that have limited access to digital infrastructure,” the report said.
In India, there exists a divide with respect to the access to technology across gender, geography, class and age […] Such divide in accessing the internet might result in uneven access to ODR services, thereby exacerbating the divide that already exists in terms of access to justice through traditional courts. — NITI Aayog report
Tech literacy of Neutral Arbitrator: Neutrals or neutral arbitrators, who will be in huge demand, will have to be comfortable with technology, the report said.
Enforcing outcome of ODR process: “A key challenge towards meeting the objectives of this report itself is the existing uncertainty regarding enforcement of ODR outcomes. There has been uncertainty regarding enforcement of mediation settlements for a long time now,” the report said.
How does NITI Aayog want the Indian govt to bring in ODRs?
The report proposes a three-pronged approach to governance.
Strengthen existing legislative framework and introduce amendments: NITI Aayog recommended amending —
- Commercial Courts Act, 2015
- Consumer Protection Act, 2020
- Legislation to digitise key legal processes such as notarisation and payment of stamp duties.
Bring in regulation: NITI Aayog said regulation should be brought in that will have to be adopted by stakeholders that provide ODR services. Principles of safe design, ethics, and neutrality have to be maintained, said the think tank while adding that: “To ensure compliance of these principles, it is recommended that a self-regulatory organization (SRO) be constituted of members from the ecosystem. ”
Increasing innovations in the ODR ecosystem: NITI Aayog said if government and judiciary encourage innovation in the ODR ecosystem then it will lead to an increase in capacity to resolve disputes. “(It would also)..allow for the diversion of cases that are pending before the judiciary to be resolved through ODR. ODR can therefore be leveraged by the judiciary to not just contain disputes from coming before it but also to reduce its past pendency,” added NITI Aayog.
A look at where ODR is currently being used in India
National Internet Exchange of India’s (NIXI) domain dispute settlement mechanism: NITI Aayog said that NIXI has adopted the IN Domain Name Dispute Resolution Policy (INDRP), which sets out the terms and conditions for resolving a dispute arising out of the registration and use of the .in Internet Domain Name.
Department of Consumer Affairs: The Department has used ODR in its basic form in the —
- National Consumer Helpline
- Integrated Consumer Grievance Redressal Mechanism
- Online Conciliation and Mediation Centre under the Ministry of Consumer Affairs
Department of Justice: NITI Aayog said that in 2017, the Department of Justice initiated the discourse on the use of ODR to address disputes involving government bodies by releasing a list of ODR Platforms and urging government departments to resolve their disputes online.
SAMADHAAN Portal: “In October 2017, the Ministry of Micro, Small and Medium Enterprises launched the SAMADHAAN portal, for e-filing and online settlement of Micro and Small Enterprises’ (MSE) dues against Public Sector Enterprises, Union Ministries, Departments and State Governments,168 which accounts for nearly 94 per cent of the dues payable to MSEs,” the report said.
Draft National e-Commerce Policy: The draft policy suggests the use of an electronic grievance redressal system including dissemination of compensation electronically for disputes arising from the e-commerce industry.
RBI’s ODR Policy on digital payments
In 2019, the “High Level Committee on Deepening Digital Payments” established by the RBI recommended the setting up of a two-tiered ODR system to handle complaints arising out of digital payments, the report said.
The Nandan Nilekani-led Committee recommended that —
- The first tier should be an automated system driven by machine learning.
- The second tier should be based on human intervention.
- An ombudsman body as an option for disputing parties to appeal against the outcome of the ODR process.
Subsequently, in August 2020, the RBI introduced ODR for resolving customer disputes and grievances pertaining to digital payments, using a system-driven and rule-based mechanism with zero or minimal manual intervention.
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