Contributed by: Singh & Associates
Justice delayed, justice denied is one of the fundamental jurisprudence of law. Magna Carta of 1215 recognizes "To no one will we sell, to no one will we refuse or delay, right or justice." The speedy justice system is one of the fundamental requirements of any society. Keeping that in mind, when the Courts were overburdened with cases and the average time required for deciding a lis increased substantially (apart from various other reasons also including the cost-effectiveness), steps were taken to decrease the burden of Courts. Various specialized Tribunals/Commissions were established under law. Similarly, Alternate Dispute resolution (ADR) came up as a future of traditional dispute resolution system. Arbitration is the most integral part of ADR. Pre COVID-19 era, Arbitration was treated as the future of Dispute Resolution. Now post COVID-19 era, there is a need to find out the future of Dispute Resolution as well as Arbitration.
The future of Litigation and ADR post-COVID-19 can be seen from two angles, i.e., (i) the ways adopted to make the adjudication process much more user friendly and contactless (as far as practicable) and (ii) to adopt other ways to provide faster relief to the parties. So broadly speaking, one is the technical aspect of adjudication and the other is the intellectual aspect.
In the pre-COVID-19 era also, there were discussions regarding the future of Dispute Resolution and ADR and one of the possible future is using the digital platform. E-filing before the Courts is encouraged to a great extent. In Delhi High Court, there are designated e-Courts where the filing is mandatorily in electronic form. Similarly in Arbitration also, various Arbitrators are comfortable in the filing of pleadings and documents through e-mail in a readable pdf format.
Till date, although e-filing was encouraged but the carrying of physical files and physical hearings are prevalent. However, COVID-19 has posed a further challenge to this physical hearings and meetings. During the initial days of COVID-19, the adjudication of matters either before Courts or Arbitral Tribunal, are almost nil and the Courts are only taking up only the very urgent or urgent matters. But this way will lead to delayed justice, which amounts to the denial of justice. Therefore, now there is a need to find out the solution.
One of the celebrated solutions in this regard is Online Dispute Resolution (ODR). Now ODR is considered as the future of Dispute Resolution including ADR. During the COVID-19, now we have seen the Courts taking up the matters through video conferencing. Arbitral Tribunals are also taking steps towards video conferencing.
ODR is already prevalent in the International Commercial Arbitrations, where, the parties reside in different countries. Also, we have seen the recording of evidence of a witness/expert through video conferencing for any international court/arbitration matter. Therefore, although ODR was not a new development, however, the COVIDd-19 has made its implementation faster and much wide.
As per the data available in the public domain, globally, various countries have taken various steps in this regard, however, for the present article, we are concentrating only on India and the steps taken by Indian Judiciary or Governments.
Steps taken by the Indian Judiciary
It is pertinent to note that the use of technology has found judicial recognition in the State of Maharashtra vs. Praful Desai1 where it was held by the Apex Court that the term ‘evidence’ includes electronic evidence and that video conferencing may be used to record evidence. It was further observed that developments in technology have opened up the possibility of virtual courts which are similar to physical courts.
National Green Tribunal, much before COVID-19 started taking up its matters listed before the Zonal Benches through Video Conferencing.
Faced with the unprecedented and extraordinary outbreak of COVID-19, Courts at all levels must respond to the call of social distancing and ensure that court premises do not contribute to the spread of the virus.
The Supreme Court in Re: Guidelines For Court Functioning Through Video Conferencing During COVID-19 Pandemic2 took suo moto cognizance of the issue and directed that courts should adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies.
Various High Courts have laid down Guidelines for on-line filing and also hearing of urgent matters through video conferencing.
Presently most of the Courts in the Country are taking matters through video conferencing and it seems that this situation will prevail for some more time. Furthermore, there is also a threat to the return of the virus every year.
Now we should appreciate the steps taken by the Indian Judiciary to start the hearings of the Urgent matters or in some cases hearing matters, however, the steps taken by the Indian Judiciary are not harmonious in nature and the respective Courts are using the technology as available to it.
However, there is no such a uniform process and there are also certain challenges, which are faced by the Lawyers throughout the Country. One of the basic examples is that in various Courts, the VC link is shared with only the Advocate on Record of the parties and that link cannot be shared further. Now, as per the practice, normally, the Advocate on Record is not the arguing Counsel and then the Arguing Counsel and the Advocate on record need to come to a place to join the VC with the same link that may pose threat to social distancing. Also, in case, where the Advocate on Record is from one state and the arguing Counsel is from another state, then there are further difficulties. Furthermore, if a party wants to intervene in a matter, then it will become difficult.
Various Courts are using various digital video conferencing platform and there is no uniformity. Also, there is surety regarding data security. Also, the petition needs to be affirmed by the Affidavit, which needs to be attested, however, till date, there is no scope for digital attestation of the affidavit.
The other problem can be trial or recording of evidence. The way, we conduct the Cross-Examination, there is a requirement of an eye to eye contact and also various things including the body language of the witness and others play a vital role while cross-examination. Furthermore, recording of evidence simultaneously is also going to be a big challenge through this online process.
Therefore, the need of the hour is a Robust Uniform Guideline which needs to be followed by all the Courts. The infrastructure also needs to be developed to have a uniform platform to be used by all the courts. The Guideline should also cover the aspect of e-filing, online hearings, data security, Court proceedings and especially the recording of evidence.
In respect to ADR, there is a need for the development of a policy framework that will be followed in both institutional as well as ad-hoc arbitration. In the case of institutional arbitration, that institution should also frame similar Rules in this regard following the policy guidelines. The ICC has already updated its status regarding the virtual hearing. Similarly, SIAC is also scheduling hearings through video conferencing. In India also, certain Tribunal has started hearing through video conferencing.
In arbitration, if the parties agree for a particular process, then the same has supremacy. At the same time, if the parties are not agreeable, then the Tribunal can lay down the procedure under section 19 of the Arbitration and Conciliation Act, 1996. In this regard, in cases of ad-hoc arbitration, in case one party wants to delay the process by not agreeing for virtual hearings, then the tribunal should suo-moto pass an order for virtual hearing.
Furthermore, there is a need for the amendment of various Codes and Laws to make clear legal provisions for digital hearing and e-Court system. Also, there is a requirement of laying down the penalty/punishment for contravening the new regime of Dispute Resolution and its strict compliance.
This shift from the traditional method of Court proceedings to this ODR, if need to be implemented for a long run, will take time. Despite all the steps taken by the Courts, the hearing of pending matters is still not there. The time required for the adjudication process has further enlarged due to COVID-19. For example, before COVID-19, even if in a matter final hearing is almost complete by the parties and only a rejoinder or sur-rejoinder argument is left, but now, there is a possibility of re-hearing of the entire matter, which will delay the adjudication process.
So, in civil cases, given that the adjudication process remains unpredictable, parties might decide to settle to conserve time and resources, by shifting to ADR formats that can be easily conducted online, like mediation and conciliation. Imagine logging into an online platform, paying a small token fee (which is far less than what litigation would cost), selecting a mediator and a hearing slot, uploading relevant documents and then attempting to resolve a dispute with the help of well-qualified mediators.
Then, if the case is settled and the mediation/conciliation proceeding took place in compliance with Sections 61-73 of the Arbitration & Conciliation Act, 1996, Section 74 would give the settlement the same effect as an arbitral award.
Therefore, mediation and conciliation pre-arbitration stage or during the pendency of arbitration need to be encouraged. However, where Government and its various departments are involved, then without a detailed Guideline as laid by the Government, it would be difficult to encourage this mediation and conciliation process.
The virtual hearing may not completely stop the physical hearing and after the effect of COVID-19 goes, there will again be a situation where we will again be attending the physical hearing. However, as the effect of COVID-19 or any other similar situation, none can predict, that’s why this is the right time to upgrade the existing law and infrastructure to lay down a uniform procedure towards virtual hearing.
In view of the above, there is a need for having a detailed Guideline for the ODR System, so that there are uniformities and the difficulties faced by the lawyers or litigants, be removed. For Arbitration (until and unless it is required so extremely) it should be encouraged only document-based arbitration, as in present times, most of the cases are covered by the documentation. However, in case of a plea by a party regarding coercion or duress or oral contract, etc. limited oral evidence be permitted.
There is no doubt that all these avenues need recourse to technology and there is a requirement of technological upgrades and updates. But maybe the time has been ripe for a while for litigation and ADR to get over the aversion to technology and embrace it. This can be facilitated by continuously training all players with the necessary software. It is high time we treat this pandemic as a boon and less as an obstacle – adaptability, after all, is the simplest secret to the survival of the fittest.
 (2003) 4 SCC 601
 SUO MOTU WRIT (CIVIL) NO.5/2020; https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf
Contributed by Singh & Associates
(Author of the above article is Nilava Bandyopadhyay, Senior Partner - Singh & Associates