The implementation of Online Dispute Resolution or Cyberarbitration in India gives rise to certain legal issues. For example, if a Mumbai based Cyberarbitration Agency conducts the online arbitration proceedings while the arbitrator is in Lucknow and one party is in Kolkata and other in Chennai, then following legal questions come before us for consideration.

• Legal sanctity of Cyberarbitration proceedings,

• Legal sanctity of documents and written submission sent through e-mail,

• Legal sanctity of the award rendered that is required to be written and signed,

• Legal issues pertaining to the court which will have the jurisdiction to enforce the award.

Let us examine the abovementioned legal issues in the light of Indian Laws. For this purpose the exhaustive study of the Indian Arbitration and Conciliation Act, 1996 along with the Information Technology Act, 2000 is of great significance. This lays before us the following legal issues for consideration.

1. A written Arbitration Agreement

Section 7(3) of the Arbitration and Conciliation Act, 1996 provides that an arbitration agreement shall be in writing. However, if the parties agree online to refer the matter to cyberarbitration through an ODR Service Provider, the question arises as to whether such a cyberagreement will be valid in law. Section 4 of Information Technology Act, 2000 lays down the following provisions on this point:

“Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-

(a) rendered or made available in an electronic form; and

(b) accessible so as to be usable for a subsequent reference .”

Now it is quite clear that Section 7(3) of the Arbitration and Conciliation Act, 1996 read with Section 4 of the Information Technology Act, 2000 make Cyberarbitration Agreement valid in the eye of law as applicable in India and the same is true for written submissions made by the parties online.

2. A written and signed “Cyberaward”

Section 31(1) of the Arbitration and Conciliation Act, 1996 lays down that an arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal. In this case the question arises whether a Cyberaward would have te same legal sanctity as the offline award. The writing requirement of a Cyberaward is clearly answered by Section 4 of the Information Technology Act, 2000. As far as the ‘signature' requirement is concerned, Section 5 of the IT Act is relevant to mention here which lays down the following:

Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.

Explanation- For the purpose of this section, “signed”, with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark or any document and the expression “signature” shall be construed accordingly.

The interpretation of Section 5 of the IT Act, 2000 provides that the digital signature would have the same legal effect as a paper signature.

3. Enforceability of “Cyberaward”

When a Cyberaward is made by a Panel of Cyberarbitrators, the question arises as to the enforceability of the “Cyberaward”. Now the legal issue comes as to the court which any party should approach in order to enforce the award. Whether it should be the court of the place whether the cyberarbitration agreement was signed or the court of the place where the Cyberarbitrators were sitting or the court of the place where the Cyberaward was rendered or the ODR Agency was physically established. Section 36 of the arbitration and Conciliation Act, 1996 clearly states that the award will be enforced under the Code of Civil Procedure, 1908 as if it were a decree of the court.

The term ‘court' has been defined under Section 2(e) of the Arbitration and Conciliation Act, 1966 as the principal Civil Court of original jurisdiction in district. It also includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been subject-matter of a suit. Therefore, the court in which the award will be enforced is dependant on the subject-matter of the arbitration and not the place where the arbitrator sits or renders the “Cyberaward”.

In case of International and Commercial Arbitration, Indian legal position is that a Cyberaward can qualify as a foreign award under Section 44 of the Arbitration and Conciliation Act, 1996 only when the following conditions are satisfied.

• It should be made in pursuance of an agreement in writing for arbitration to be governed by the New York Convention on the recognition and enforcement of Foreign Arbitral Awards, 1958.

• Such Cyberaward should not be governed by the law of India .

• It should have been made outside India in the territory of a foreign State notified by the Government of India as having made reciprocal provisions for enforcement of the Convention.

The legal issues involved in successful completion of the Cyberarbitration proceedings in India can be solved with the help of a conjoint reading of the Arbitration and Conciliation Act, 1996 and the Information Technology Act, 2000.