Case for creating a Cyber Disputes Mediation and Arbitration Center

The Cyber Appellate Tribunal (CyAT) which was envisaged under ITA 2000/8 as the national appeal authority over all the adjudication offices is finally confined to history.

Despite being in existence from 2000 upto 2017, the CyAT could not come to a single valid decision. The one decision in which CyAT was close to a decision was ICICI Bank Vs S Umashankar which was posted for judgement on July 3, 2011 when everybody know that the then Chair person was retiring on June 30, 2011. Since then, untill now, Governments could not find a Chair person and CyAT remained non functional.

Now with the passage of the Finance Act 2017, CyAT has been legally closed and merged with TDSAT. (Telecom Disputes Settlement Appellate Tribunal).  TDSAT  needs to formulate its procedures to hear the past cases which are pending before CyAT (Closed) and to take up future cases.

It is observed that while appeals from TDSAT in its current Telecom related disputes go to the Supreme Court, the appeals of CyAT cases will under Section 62 of ITA 2000/8 will go to the High Courts as in the past. Currently the Chair person of TDSAT is a ex-Supreme Court judge or at least a Chief Justice. How would he like his decision to be reviewed by the High Court without feeling uncomfortable?… is one of the several issues that we may need to resolve to ensure smooth transition of CyAT into TDSAT.

While the TDSAT and the Government sorts out these, it is time for Citizens and other Stakeholders to make their own efforts to ensure that the interests of the Cyber Crime victims are protected and there is a functional Cyber Judicial system in India accessible to all.

In this context, I would call upon interested persons to join hands in setting up a “Cyber Disputes Mediation and Arbitration Center” and try to provide an alternate mechanism of dispute resolutions outside the statutory bodies such as the “Adjudicator” and the “TDSAT”.

Obviously, if the mediation fails, the other alternatives including Adjudication remain open.

If the arbitration is agreed upon but later challenged, there is already a mechanism where by the High Court comes into the picture and the dispute resolution gets back on the statutory platform.

There would be some questions raised as to whether an “Arbitration Contract” would be ultra vires the Information Technology Act 2000/8. Section 61 of ITA 2000/8 bars the jurisdiction of the Courts. But “Compounding” is part of ITA 2000/8 and is available for all Civil disputes and most of the Criminal charges under the Act. Hence, an “Arbitration Contract” or a “Mediation Settlement” must be considered as being well within the provisions of the Act.

Keeping the tradition of Naavi in setting up services based on the concepts that are futuristic, Naavi now intends laying the foundation stone for a “Alternate Disputes Resolution Center” for Cyber Disputes. Presently, it will be developed under www.adr.ind.in  (under construction)

It is intended that it will use the services of odrglobal.in as a platform for online dispute resolutions and may also use physical meetings.

This is a concept being seeded now and it requires mentors and participants to make it take root and grow into a full grown tree that can provide shelter to the Cyber Crime victims.

The first set of participants to this endeavour that I am looking forward to are the Cyber Law experts who have the capability of being the “Mediators/Arbitrators” or helping the parties to the dispute as counsels. They can register themselves as “Counsellors” and offering their services for Mediation or Arbitration to the disputing parties.

Naavi will be the promoter and administrator who would like to develop this ADRC for Cyber Disputes as a Mediation cum Arbitration Council with its own set of model rules.  This will take time and also needs assistance from like minded persons.

ADR-C-FCD is intended to function as a “Not for Profit” organization, though ODRGlobal.in which is presently owned by Naavi will continue to be a commercial proposition providing its services at a cost.  This limited conflict is considered inevitable at this point of time.

Initially,  adr.ind.in will focus on spreading the ADR knowledge and function as an ADR Knowledge Center. This may remain the main activity of the Center until this concept which is revolutionary in certain respects gains acceptance of the community.

The acceptance will be visible when some of the “Intermediaries” such as Banks or Mobile Wallet service providers etc start accepting this Center as a part of their grievance redressal mechanism. I am prepared to wait for this to happen over a period of time.

I look forward as always for comments from other domain experts in the area of Cyber Law, ADR and Information Technology to nurse this thought further towards practical implementation.

Naavi

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Indian Institution of Technical Arbitrators holds an awareness workshop

The Indian Institution of Technical Arbitrators (IITARB), Bangalore had organized an awareness building lecture yesterday, the 3rd April, 2017, at the Association of Consulting Engineers, K R Circle.

The event was meant to build some awareness about “Arbitration” among the members of IITARB which mainly consisted of Civil Engineers who are engaged in consultancy based on their Civil Engineering Expertise.

The meeting was addressed by Mr C.N.Sundareshan, Secretary, ICADR, (International Center for Alternative Dispute Resolution, Bangalore) who explained the role of technical experts as “Arbitrators”.

The meeting was well attended by many consulting engineers many of whom are presently engaged as “Certified Valuers” of properties. A few senior Consultants had some experience in acting as mediators/adjudicators of dispute in their official capacity.

However, a large number of participants were new to the field of Arbitration and therefore it was a first exposure to this emerging field of practice where domain experts have a role to play in resolving disputes.

The event was a good effort on the part of IITARB, Bangalore to kindle the interest on Alternative Dispute Resolution among the members. The organization has a large number of members with Civil Engineering expertise and has a good potential to develop into an expert dispute resolution forum in due course.

Ujvala.in invites the members of IITARB to join the movement of ODR initiated by Naavi by participating in the online awareness exercise undertaken by Naavi through ujvala.in as well as Naavi.org.

Naavi

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Date of Applicability of the New Arbitration Act

The new Indian Arbitration and Conciliation Act (ACA-2016) which was notified on 1/1/2016 and made retrospectively effective from October 23, 2015 (The date when the related ordinance was notified) has changed the nature of Arbitration law in India to the extent that we need to look at all judicial precedence in the old Act with skepticism as to its applicability in the new regime.

Recently, the Delhi High Court had to adjudicate whether the amendments which are deemed to be effective from 23rd October 2015 apply to an award made prior to that date and lying before the Court on an appeal.

This was the case of Ardee Infrastructure Ltd V Bhatia. In this case the arbitration had been commenced before October 23, 2015 and an appeal had been preferred before the Court. In he old Act, when an appeal for setting aside of an arbitration award has been made under Section 34, it also operated as a stay on the arbitration award. In the amended act, “Stay” required an express granting of the “Stay” by the Court and a mere admission of the appeal was not considered as automatically granting a “Stay”.

The Single Judge of the Delhi High Court in an order dated May 31, 2016 ordered that the appellant (Ardee) had to deposit Rs 2.7 crores to the Court without considering the admission of the appeal as a “Stay”. The aggrieved party then had invoked a challenge before the Division Bench. The Division Bench set aside the order to the extent that it imposed a condition that the appellant had to pay Rs 2.7 crores on January 6, 2017.

The view was that the amendment did not apply to the current case since there was an “Accrued Right” under the Arbitration as per the old Act which could not be disturbed by the amendment.

According to the provisions of Section 26 of the Amendment Act,

“Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act”.

The Division Bench did recognize that there was an ambiguity in this respect as to the term “arbitral proceedings” is restricted to the proceedings before the Tribunal or extends to the proceedings before the Court also.

It however ruled not to interfere with the accrued right of the appellant and decided that the amended act is applicable only for arbitration commenced after October 23, 2015.

Naavi

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