The conference will also delve into dispute resolution in the industry, covering issues such as litigation B2C, secrecy obligations and dual purpose technology, and their impact on dispute resolution proceedings. The range of procedures available to resolve disputes – such as state court procedures and international commercial arbitration – will be addressed.

The conference will be held at the ICC Secretariat in Paris and will be conducted in English and French. Simultaneous translation will be available. Space is limited, and a discount will be offered to members and non-members of ICC who enroll by 12 January.

“This Act enables Canada to ratify a convention that has already been ratified by 143 countries, and that will provide Canadian investors with another internationally recognized instrument for protecting their assets abroad,” said Minister Bernier.

“This is welcome news for Canadian business,” said the Honourable David Emerson, Minister of International Trade. “Entrenching international standards will both promote and protect two-way investment between Canada and its trading partners around the world. These are key objectives of the Global Commerce Strategy.”

The ICSID Convention is a World Bank-sponsored instrument aimed at facilitating the free flow of international investment. It does this by providing foreign investors and host states with tools that enable dispute resolution through conciliation and arbitration, and it has become an internationally recognized, efficient and reliable mechanism for settling investment disputes. The ICSID arbitration rules were modified in 2006 to facilitate open hearings and the filing of amicus briefs. Canada’s ratification of the Convention not only provides additional protection to Canadian investors but also reinforces Canada’s investment-friendly image among foreign states.

The Convention can also be used by provinces and territories that pass implementing legislation. In recent years, four provinces—British Columbia, Newfoundland and Labrador, Ontario and Saskatchewan—have adopted legislation implementing the Convention in their jurisdictions. Nunavut has also legislated to that effect. The Government of Canada welcomes provincial and territorial support for the Convention and invites all provinces and territories that wish to use ICSID arbitration to pass implementing legislation.

Source:
Foreign Affairs Media Relations Office
Foreign Affairs and International Trade Canada
613-995-1874
www.international.gc.ca/index.aspx

“The International Chamber of Commerce’s decision to set up branch of the Secretariat of the Court in Hong Kong is an endorsement of our position as a premier center for international arbitration services. Its presence will enhance the provision of arbitration services in Hong Kong, ” said Wong Yan Lung, secretary for Justice of the Hong Kong Special Administrative Region government.

The ICC International Court of Arbitration is one of the world’s top international dispute resolution institutions. It is assisted by a secretariat located at the ICC headquarters in Paris. In 2007, it handled 599 domestic and international arbitration cases. The Court oversees the ICC arbitration process and, among other things, is responsible for appointing arbitrators and scrutinizing and approving all arbitral awards.

Negotiation: The most common form of dispute resolution is negotiation. By this means alone nearly all disputes are solved. If negotiations fail, it is necessary to seek the assistance of a neutral third party or several neutral third parties to facilitate a solution.

Mr. Christopher To, Secretary General of Hong Kong International Arbitration Centre HKIAC, video:

Arbitration: For an arbitration to take place, the disputing parties must agree to take their dispute to arbitration. In practice, this agreement is often made before the dispute arises and is included as a clause in their commercial contract. In signing a contract with an arbitration clause, the parties are agreeing that their dispute will not be heard by a court but by a private individual or a panel of several private individuals. If parties have agreed to arbitration, they will generally have to go to arbitration rather than court as the courts will normally refuse to hear their case by staying it to force the reluctant party to honour their agreement to arbitrate.

Arbitration is a legal process which results in an award being issued by the arbitrator or arbitrators. Arbitration awards are final and binding on the parties and can only be challenged in very exceptional circumstances. An award has a status very like a court judgment and is enforceable in a very similar manner. Arbitration awards made in Hong Kong are enforceable through the courts of most of the world’s trading nations.

Litigation: In the absence of an arbitration agreement or other consensual means of dispute resolution, the parties may commence proceedings in the courts. Litigation in Hong Kong courts is handled very competently. The decision of the Court of First Instance is not, however, final as an aggrieved party has an automatic right of appeal to the Court of Appeal and if the amount in dispute exceeds HK$1,000,000, they have an automatic right of appeal from the Court of Appeal to the Hong Kong Court of Final Appeal.

Online Arbitration in Hong Kong International Arbitration Centre HKIAC

The Hong Kong International Arbitration Centre HKIAC places great emphasis to providing online dispute resolution services in a wide variety of areas including the areas of intellectual property and information technology. Thus it is fitting that the Hong Kong International Arbitration Centre HKIAC has set as one of its goals to be one of the leaders among online dispute resolution providers in regard to domain names and E-Commerce.

The Hong Kong International Arbitration Centre HKIAC provides online dispute resolution services in the following ways:-

Dispute Resolution Service for Domain Names:

1. Dispute Resolution for gTLDs (for example: .com, .net and .org etc) – (UDRP)
As a partner in and manager of the Hong Kong Office of in the Asian Domain Name Dispute Resolution Centre which is one of the four domain name dispute resolution providers approved by the Internet Corporation for the Assigned Names and Numbers (ICANN) to provide domain name dispute resolution services in regard to generic top level domain names (gTLDs) such as .com, .net and .org. Disputes in regard to gTLDs are carried out under the Uniform Domain Name Policy (UDRP) issued by ICANN. Dispute Resolution for gTLDs

2. Dispute Resolution for ccTLDs (for example: .hk, .cn , .pw and .ph etc)
a. The Hong Kong International Arbitration Centre HKIAC is the sole provider of dispute resolution services in regards to .hk domain names, having been appointed for such purpose by the Hong Kong Domain Name Registration Company Limited (HKDNR). Mandatory final and binding arbitration is the method chosen by HKDNR for the purpose of resolving disputes in regards to .hk domain names. Dispute Resolution for .hk
b. The Hong Kong International Arbitration Centre HKIAC has been appointed by the China Internet Network Information Center (CNNIC) to resolve .cn domain name disputes. Dispute Resolution for .cn
c.The Hong Kong International Arbitration Centre HKIAC was appointed by the .pw Registry Corporation as the sole .pw Domain Name Dispute Resolution Service Provider. Dispute Resolution for .pw
d.The Hong Kong International Arbitration Centre HKIAC was recently appointed by the .dotPH – the Official Domain Name Registry for Philippines to resolve .ph domain name disputes. Dispute Resolution for .ph

3. DotAsia Sunrise Challenge Policy.

The Hong Kong International Arbitration Centre (HKIAC) is the global official dispute resolution provider to handle disputes and challenges arising out of the launch of the .Asia domain.

Dispute Resolution for Registrar Transfer (TDRP)

The ADNDRC has started to handle Registrar Transfer Disputes under the ICANN Registrar Transfer Dispute Resolution Policy since 11 December 2004. Dispute Resolution for Registrar Transfer Disputes.

Dispute Resolution for Internet Keyword

The Hong Kong International Arbitration Centre HKIAC has been appointed by the CNNIC as a provider to handle Internet Keyword Dispute under CNNIC’s Internet Keyword Dispute Resolution Policy. Dispute Resolution for Internet Keyword Dispute.

Dispute Resolution for E-Commerce – HKIAC Webtrust Programme

Webtrust Programme is a third party arbitration framework for the use and adoption by on-line merchants to handle consumer disputes on-line. It is jointly promulgated by the HKIAC and the Hong Kong Institute of Certified Public Accounts in January 2002. The HKIAC is the administrative organisation of that programme, responsible for administering the Programme and appointing of arbitrator. The HKIAC Electronic Transaction Arbitration Rules was adopted as the rules for the arbitration process of that programme.

In order to facilitate the efficient and speedy disposition of domain name disputes, the HKIAC, with technology powered and supported by the Tradelink Electronic Commerce Ltd., has developed a proprietary on-line dispute resolution system for gTLD and hkTLD, which permits parties to conduct their domain name dispute cases by means of a sophisticated fully on-line web-based system.

More information: Hong Kong International Arbitration Centre HKIAC.

Besides the workshop and forum, Schonewille used her visit in Israel to promote mutual efforts to advance awareness, acceptance and the use of international arbitration and mediation in the MEDA countries (Israel, Algeria, Egypt, Jordan, Lebanon, Morocco, Syria, Tunisia, Turkey and West Bank & Gaza), with special attention to small- and medium-sized enterprises (SMEs). The intention of the European Commission’s initiative is to assist SMEs to resolve international commercial disputes arising from business transactions between Middle Eastern countries and EU-based companies, in order to enhance business transactions between companies based in two or more Middle East countries.

In order for the good intentions to materialize, Schonewille met different people from the business and legal community. Among them, Judge Edna Bekenstein (President of Magistrate Courts of Tel Aviv, Israel and a District Judge); Dr. Peretz Segal (Ministry of Justice, former director of the National Center for Mediation and Dispute Resolution); advocate Yori Geiron (president of the Israel Bar), Advocate Shai Porat (head of the mediation committee of the Israel Bar); Omri Gefen (CEO of Gevim mediation center from Herzliya); and many more, including myself, who had the pleasure of having her over at my home to light Hanukka candles.

These meetings should encourage creating and strengthening a working collaboration between Israeli Arbitration/Mediation Centers and the EU Arbitration/ADR Centers. Moreover, it could make a first encounter with existing MEDA counterpart institutions, bearing in mind that the European Commission’s project is intended to integrate local initiatives, without creating assistance-dependent services.

In 2005, the European Commission sponsored a three-year project dedicated to facilitating foreign investment and international trade, across the northern and southern shores of the Mediterranean, through the promotion of Alternative Dispute Resolution in the 10 MEDA countries. At the concluding event of this project, a conference was held in Rome at the end of September. Representatives from the 27 EU member states participated alongside representatives from the 10 MEDA countries.

The project was designed specifically to assist SMEs, the backbone of most MEDA country economies, to develop greater skill and ease in dealing with counterparts in other countries. Therefore, the project worked primarily with bar associations, jurists, local arbitration and other ADR groups, chambers of commerce, federations of industry, trade promotion agencies and other organizations, which relied upon by SMEs for advice and related services. The trainings on international contracts and dispute resolution were aimed at creating a group of highly specialized mediators and arbitrators who will increase the availability of specialized services. The intensive training workshop Training for International Commercial Mediators and Arbitrators were geared toward local business lawyers of the MEDA countries.

Most intermediary institutions, like chambers of commerce and entrepreneurial associations, perform the function of informally helping local and foreign entrepreneurs to amicably settle disputes. Many firms, especially SMEs, have had positive experiences with regard to receiving assistance from an intermediary institution in settling problems/disputes arising from a given contract. Establishing links among all institutional centers and promoting and managing arbitration and ADR in the EU and MEDA countries through networking is instrumental in promoting the use of such dispute settlement methods among entrepreneurs.

The preliminary step that should be taken now is creating informal networks. If the network is set out well, it could make for a good platform to enhance business and financial transactions between private entities in Israel and the other MEDA countries that may use the EU roof to try to normalize commercial connections with their Israeli counterparts.

The active Israeli dispute resolution centers could use this opportunity to enter into cooperation agreements with institutions in the EU and in Arab countries surrounding Israel. In instances where the potential for formal cooperation agreements is demonstrated following the cultivation of a relationship, the agreement may result in a formal Memorandum of Understanding between local organizations. The cooperation should include exchange of experience and information, and may also include cooperation in provision of services, such as in the case of co-mediation. In this process, rather than choosing a mediator from a third country, international litigants can each pick a mediator from a mediation organization in their own country. The neutrals then undertake to work together to facilitate settlement negotiations.

While recourse to two neutrals may add some cost, this approach generally increases confidence in the process. Also, it can be effective when there is need for a mediator who speaks a certain language or has a specific background. For such reasons, co-mediation can make settlement more likely, so parties often find it worthwhile.

Source: Jerusalem Post, Israel – Dec 11, 2007

Bahrain will host a 10-day conference on arbitration which is expected to be attended by international experts. The event, beginning on November 10, will focus on settling commercial disputes between Islamic financial establishments and will offer solutions based on Islamic law.

Speakers include UN General Assembly president Shaikha Haya bint Rashid Al Khalifa, International Court of Arbitration chairman Pierre Tercier and president of the Paris-based International Chamber of Commerce Institute of International Business Law Serge Lazarev.

Justice and Islamic affairs Minister Shaikh Khalid bin Ali bin Abdullah Al Khalifa said the ministry will support the event. He said the ministry encourages alternative methods to resolve financial and commercial disputes.

We hopes be invited to attend this forum.

The swift growth of e-commerce and web site contracts has increased the potential for conflicts over contracts which have been entered into online. This has necessitated a solution that is compatible with online matters and is netizens centric. This challenging task can be achieved by the use of ODRM in India. The use of ODRM to resolve such e-commerce and web site contracts disputes are crucial for building consumer confidence and permitting access to justice in an online business environment. These ODRM are not part and parcel of the traditional dispute resolution machinery popularly known as judiciary but is an alternative and efficacious institution known as ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in almost all contentious matters, which are capable of being resolved, under law, by agreement between the parties. They have been employed with very encouraging results in several categories of disputes, especially civil, commercial, industrial and family disputes. These techniques have been shown to work across the full range of business disputes like banking, contract performance, construction contracts, intellectual property rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution in respect of commercial disputes. However, ADR is not intended to supplant altogether the traditional means of resolving disputes by means of litigation. It only offers alternatives to litigation. There are a large number of areas like constitutional law and criminal law where ADR cannot substitute courts. In those situations one has to take recourse of the existing traditional modes of dispute resolution.

II. THE PREMIER MODE OF ADR

Arbitration is the supreme method for resolving and adjudicating commercial disputes . It is a procedure in which the dispute is submitted to one or more arbitrators, for adjudication, who resolve the dispute. The decision is given in the form of an award. The main objects of arbitration are speed, economy, convenience and simplicity of procedures. It encourages healthy relationship between the parties. The Arbitration and Conciliation Act, 1996 governs the ?arbitration procedures? in India. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I (Sections 2 to 43), no judicial authority shall intervene except where so provided in the said part. This clearly indicates the legislative intent to minimise supervisory role of courts to ensure that the intervention of the court is minimal. Section 4 is a deeming provision, which lays down that where a party proceeds with the arbitration without stating his objection to non-compliance of any provision of Part I from which the parties may derogate or any requirement under arbitration agreement, it shall be deemed that he has waived his right to so object. Section 7 provides that the arbitration agreement shall be in writing and such an agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Sub-section (4) of Section 7 provides the conditions under which a document or exchange of letter or exchange of statement of claim and defence may amount to an arbitration agreement. Section 11 of the Act provides for appointment of arbitrators and sub-section (6) thereof empowers the Chief Justice of the High Court or any person or institution designated by him to make such an appointment on the happening of certain conditions enumerated in clauses (a), (b) or (c). Section 16 of the Act is important and it provides that the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or authority of the arbitration agreement . Thus, the base provided by the Act is sufficient to accommodate the mandates of ODRM. It must be noted that a court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a “purposive, updating and an ongoing interpretation”. This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind . Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly . The judiciary in India has not only recognised this need but has also utilised the information technology to do complete justice. The Supreme Court has on various occasions encouraged the use of information technology for meeting the ends of justice and to do complete justice. There is nothing that shows that the courts in India will not encourage the concept of ODRM in India. The Supreme Court has encouraged the use of ADR techniques in India and very soon the same will be extended to ODRM as well.

III. E-JUSTICE SYSTEM IN INDIA

The judicial response vis-?-vis information technology is positive and technology friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters the words “notice in writing”, in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: “A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words “giving notice in writing” in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement”.

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as “Registered A.D”.

In Basavaraj R. Patil v State of Karnataka the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of “video conferencing” should be used. In that case the requirements of justice are practically harmonised with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai the Supreme Court observed: “The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the “presence” of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable”.

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to “territorial distances” or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. Thus, it can be safely concluded that the “E-justice system” has found its existence in India. It is not at all absurd to suggest that ODRM will also fine its place in the Indian legal system very soon.

IV. ONLINE DISPUTE RESOLUTION

The ADR mechanism can be effectively used to settle online disputes by modifying it as per the need. It is time effective and cost efficient. It can also overcome the geographical hurdles. However, there are certain issues revolving around ADR mechanism like need for personnel with knowledge of IT, ADR and law; technical concerns; legal sanctity of proceedings; industry support etc. But these hurdles are just a passing phase. The use of ADR mechanisms for resolving online disputes is increasing day by day. A number of web-sites provide for some type of online dispute resolution method like arbitration, negotiation, mediation etc. and also certain conflict management services. These services fall into the general categories of complaint handling, negotiation, mediation and arbitration. These services will be in great demand in the future since the 1996 Act has given paramount importance to ?party autonomy? by accepting the intention of parties as a platform for dispute resolution. Thus, what law will be applicable will depend on the intention of parties. If the parties have adopted the mechanism of ODRM then it will definitely apply with necessary minor modifications. The language used in various sections of the Arbitration Act give options to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator. So if there is an agreement between the parties with regard to the procedure to be followed by the arbitrator, the arbitrator is required to follow the said procedure. However, this would not mean that in appeal parties can contend that the appellate procedure should be as per their agreement. The appellate procedure would be governed as per the statutory provisions and parties have no right to change the same . It must be noted that party autonomy presupposes the existence of an arbitration agreement. There may be a situation where the parties had not entered into an arbitration agreement. To meet such situations Sec.89 of CPC can be invoked. The reason for inserting Sec.89 has been to try and see that all the cases which are filed in the court need not necessarily be decided by the court itself. Keeping in mind the law delays and the limited number of judges, which are available, it has now become imperative to resort to ADR Mechanism as contemplated by Sec.89. There is a requirement that the parties to the suit must indicate the form of ADR, which they would like to resort to during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act 1996 will apply and that will go outside the stream of the court .

V CONCLUSION

The need and necessity of ODRM is going to be felt very soon and we must be prepared for the same. A sound techno-legal base must be established in advance. There is a possibility that we may get BPO services in arbitration matters in the distant future. In any case it is also a mandate of Article 21 of the Constitution of India. Art.21 confers a Fundamental Right on every person not to be deprived of his life or liberty, except according to procedure established by law. Such procedure is not some semblance of a procedure but the procedure should be ?reasonable, fair and just?, and therefrom flows the right to speedy trial . It cannot be doubted that if the State is encouraging ODRM it is thereby assisting in the attainment of a speedier, economical and convenient justice system. Thus, the sooner ODRM is adopted the better it will be for the nation in general and the justice seeker in particular.

Praveen Dalal
Arbitrator, consultant and attorney
Delhi High Court, India.

E-mail:pd37(at)rediffmail.com
Contact at: +91 9899169611