Technology

Regulatory Sovereignty in India: Indigenizing CompetitionTechnology Approaches, ISAIL-TR-001

are 3 kinetic stages, which keep transforming alongside,

in the linear/cyclic trajectories of policy by practice. The Indian state therefore must also ensure that the linear and cyclic trajectories must be carefully understood – so that sensible methods can be derived/discovered. The fact that disruptive innovations have escalated the pace of those trajectories, is why governments around the world are facing inabilities to control the matter and establishing routes of cooperation and reducing co-dependency.

Reform Common Law Machineries in Public Law and Technology

Over the last four decades, the modern technology revolution has been driving the technical advancements in question. Innovations in the information sciences are focused on collecting, processing, and analyzing vast amounts of data that have consequences for a wide range of research and development. As a result of these advancements, a wide range of industries will reap substantial social, economic, and productivity gains. Rapid progresses in information technology are transforming the way people work, consume, play, and engage with each other and their environment. Technological advancements will be influenced by government policy, which will need changes in laws and regulations. On the other hand, the current machinery that is in place to resolve the problems that new technologies bring is still oldfashioned. Common law mechanism is still a prevalent and is generally preferred by the courts. In fact, not just in technological-imbibed issues, but even in cases relating to public law, that must, after more than 7 decades of independence, not be a way in which independent judiciary of an independent country must adopt. With the advent of these technologies, the public's worry about the numerous dangers that arise when judgments are made by computers instead of people is growing. Truthfully, the worry is legitimate considering the country’s coyness in terms of empathizing the people after willing to accept these advances and implement them in the system. Artificial Intelligence (AI) has been the subject of a great deal of discussion about ethical, safety, and regulatory issues.

Legislators are faced with a new challenge: crafting law that does not impede AI progress, but instead protects the public from the risks that may arise when computers replace human judgment. The fast growth of AI technology is at odds with the relative slowdowns of state and national legislators, as well as their lack of competence. Our courts may be the first to confront these new legal problems.

Typology of Regulation throughout our history

The technology sector, which relates to a category of stocks relating to the research, development, and/or distribution of technologically-based goods and services, is comparatively new sector, as compared to public law. Therefore, since technology is a new and independent emerging sector, the understanding of its regulation would flow from comprehending the past experience. After the independence, India tested to implement a socialistmixed economy model, wherein the state retained control over some of the prominent sectors of the economy, like heavy industries and utilities. Even though private sector activity was permitted, the government tried to regulate it through licensing and quotas relating to intermediate goods’ imports and exports. These regulations were complemented by high tariff. Therefore, the governments were not only a manufacturer and manager of these tactically vital goods and services, it also exercised uninterrupted control over the productivity. Sometimes it even linked prices of private sector commotion. Its regulatory actions, then were hardly be labelled as independent. It cannot be denied that the process of domestic reform and external liberalisation is still continuing. Yet, in various sectors, the profile of a producer has undergone a significant change. With private firms co-existing with government firms in many sectors, which were previously government monopolies, like electricity or telecommunications, these changes are visible on the face of it. The harmony between decision-makers and stakeholders was after it was suggested that independent regulation is required in every sector to guarantee a level playing field. As a result, independent regulators have been constituted in various sectors, starting with electricity and telecommunications, and the number is still on the rise. Due to market failures prompted by anti-competitive actions or sometimes due to specific technical reasons, the expansion in the

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sectors cannot be left to unregulated markets. Thus, some form of regulation of the market process is needed. Sector regulators are important as individual sectors have their own characteristics which, in turn, determine the nature of regulation. These provide orderly procedures and protect consumer and investors from market failures and anti-competitive actions in a particular sector.

Technological transition

People who utilize the court system present evidence and arguments to the judge online or via some kind of electronic communication in the first generation. In essence, judgments are moving from the courtroom to the internet these days (Fountain, 2001). It will be able to establish expanded courts in a digital society, where we go beyond the judgments made by judges to a diagnostic system that guides individuals about their legal alternatives, how to gather evidence and alternative dispute resolution methods (Dixit, 2004). Utilizing technology to settle conflicts without lawyers or the conventional court system would be the second generation of using technology to change the legal system, which Richard refers to as "outcome thinking." With predictive analytics, it's quite possible that within a very short period of time, we'll have systems that can anticipate the result of court cases based on previous judgments (Susskind, 2010 pp. 99, 217-225). Imagine if individuals could utilize a machine-learning algorithm to produce a prediction about the probable result of a case and then accept that projection as a binding decision instead of waiting for a court date (and the support of the conventional legal system).

Technology effects on common law regulations

As well as having a direct impact on innovation and technological progress, regulation reform and regulatory reform have a direct impact on technology development. If some laws become outdated or inefficient due to technological advances, this is the most common scenario. In the past, industries that were deemed natural monopolies owing to the nature of existing technology were subject to regulation. So, for example, monopoly arrangements in telecommunications, electric utilities, and transportation have been in place for a long time

due to concerns about public service and national security. Over time, the technologies that support these industries have evolved, reducing their monopoly status by decreasing costs and introducing new players. Changing technology has a profound impact on regulation, as is seen in the telecommunications business. Regulators in this case have obsolete rules regulating goods and services that didn't exist when the rules were created. Local telephone companies, long-distance firms, international airlines, satellite transmitters, radio hosts, broadcast tv companies, cellular carriers, fibre-optics access providers, wireless cable operators, and specialized radio services are just a few examples of how technology has blurred the lines between service providers (Barral-Viñals, 2014). This innovation is resulting in new multimedia goods as well as the increasing merging of broadcast, computer technology and entertainment. Nevertheless, in many countries, these providers and goods are still governed by laws based on the previous technical system. Information technologies may change a sector's operations and put the framework of regulation into doubt. As transaction costs have decreased and the simplicity with which they may be carried out has been enabled by electronic networks, regulatory changes have become more necessary. Electronic money or digital currency, as well as electronic data exchange, have the potential to further alter financial markets, both nationally and internationally. Also in the field of social regulation, new goods and processes may outrun existing regulatory frameworks.

Role of ICTs in Judiciary and public sector

Worldwide, governments are investing in information and communication technologies (ICTs) in order to simplify and upgrade judicial systems in light of the organizational and institutional simplification associated with digitalization. The review of the changes caused by the digitization of this sector, as well as the impact digital technology has on pre-existing institutional settings, and the broad value underpinning judicial duties and enacted by judicial power, has received very little attention from researchers, with very few notable exceptions (Reiling, 2009). Information and communication technologies have a significant impact in a number of ways on how the law is applied, including standardizing systems and processes, guiding

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the collection of data, improving access to justice and helping identify relevant case law and jurisprudence, and providing guidance to judges' working practices and writings. The increasing importance of the regulations required to deploy technology in this area is a significant indicator of this view of the function of ICT in the judicial system. As a result of recent empirical research, the article examines how technology interacts with law in e-justice systems. As a rule, public sector ICT adoption fails to address the intricacy of organisational, administrative, and judicial effects that ICTs have once deployed to reform, modernize, or rationalize the public sector machinery (Cordella, 2012 pp. 512-520). In this way, ICT-enabled reform in the public sector undervalues its effect on the context of public sector service delivery. This is especially apparent when ITCs are used to change the judicial sector's service delivery processes and systems. It is not assumed by the instrumental view of technology that organizational activities or processes are implemented into technology in holistic terms, but that they will be described in a machine-representable and coupled manner to accommodate the logic underpinning technological components used in that specific context. Ontological framings, for example, differ in how they organize the universe, thus the holistic notion of technical simplification is rendered meaningless once it is understood that alternate technological products reduce complexity into their various logical and developmental objectives. To handle the world's complexity, technology has developed a functional logic that reflects the logical sequences that make up the operational language of ICT (Kallinikos, 2005). To describe the classes and connections that are used to build ICT, the complexity of the system must be minimized. Because they divide activities and domains within which they will function, ICTs clearly delineate operational limits within which the information systems will operate. In addition to creating causal and instrumental relationships, information technology also stabilizes these relationships into standard procedures that make them difficult to alter. When these relationships are standardized into reliable scripts, the kernel of the system is created.

Technology in judicial matters

Legal technology has focused on supporting lawyers and their employees in some of their daily tasks, such as email, accounting systems, word processing and other tools. Some activities, such as document analysis and document writing, may now be automated utilizing technology. Most practitioners today come from law schools that are still producing 20th-century lawyers when we need 21st-century lawyers to satisfy the demands of businesses and people who want a lower-cost legal alternative that is accessible and available online. When it comes to legal jobs, it's now possible for computers to perform some of it, which was previously inconceivable. It is common for large conflicts to include many papers that must be analyzed. These papers are usually reviewed by legions of young attorneys and paralegals. This job can be done by a well taught machine. Automated document drafting is also gaining popularity. Additionally, there are technologies that can anticipate the outcomes of conflicts. Increasingly, we're seeing computers taking on duties that we used to believe were exclusively the domain of attorneys. More and more activities that were previously performed by people, such as document creation, administration or handling are now digitized and performed by computers. The technological characteristics of ICTs limit the interpretation and framing of these processes (Lanzara, 2009). Some of these developments may undermine the hierarchical connections that have controlled the judiciary for centuries, which may have a profound impact on the power and authority relationships that define discussions and, in turn, the result of legal interpretation. ICTs, in the end, create a new habitus through which the law is understood and, thus, the values that it conveys. The greater degree of functional simplicity and closure of court processes indicates the interaction between legal standards and the regulative character of technology. Instead of courts, these processes are increasingly determined by software and therefore by the software suppliers, as opposed to the traditional legal practice of courts. There are different types of software used for this. One such important software is CMS i.e. Case Management System.

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Role of Case Management Systems

In the legal system, case management systems (CMSs) serve as the skeleton. You may use them to gather important case-related information, automate the monitoring of court cases, and take immediate action in administrative or legal matters. You can also use the data obtained for statistical, judicial, and management reasons. This forces courts to standardize data and processes. Procedural law and court procedures are coded into CMSs, which reduces the traditional impact of courts and judicial operators on the interpretation of procedural law (Steelman, et al., 2000). Parties in a lawsuit and courts use electronic filing to share procedural papers. In order to automate current court processes, CMSs have been created. Code of Procedures guidelines are implemented in the system to rationalize procedural flow. A black box is created in the software code and system architecture that eliminates all other interpretations of procedural laws and replaces them with the black boxed interpretation. These changes have a wide range of consequences for society. To facilitate information sharing and coordination, case management systems may be built to link to other courts and related judicial systems or municipal agencies (Barral-Viñals, 2014). Incorporating case management options and information technology across courts and other appropriate authorities has many benefits, but it also comes with a number of obstacles in the form of organizational culture, information dissemination, and privacy policies, as well as technical issues that reflect differences in information system automation, to name just a few (Harlow, et al., 2020).

Government Regulatory Functions in Technology

Sector studies suggests that the reforms in India deregulated local business and steadily reduced tariffs to join in India into the global economy. But the policymakers have, by and large, not made radical passages to relieve the blockages compelling competition in markets. Within the government, numerous key drivers of change can be recognized regarding the regulatory scenario. An essential driver is the political and administrative governance which comes from the Centre. One of the crucial development urgencies of the government is to improve the

value of government business interface at all levels through ministries. The government must allocate a great deal of prominence to initiate a range of regulatory reform initiatives to fast-track private sector investments and enable significant cost savings for the private sector. Technological development and product commercialization are intimately linked to government policy and market interactions in today's world. It is impossible for the private sector to create and deploy technology without working with the marketplace and taking public policy into account. Also, for the same reasons, it is rare for the government to be successful in deploying new technology to accomplish public good goals without working closely with industry and market participants throughout R&D and deployment phases. To make matters worse, government investments in R&D alone are seldom sufficient for technological adoption to occur. Direct government funding for R&D has historically been less essential for commercial success than its support for dissemination and usage, according to historical evidence. Government investment in R&D is essential, but it must be complemented by standards, incentives, knowledge, and education. In terms of economics, what counts is if R&D can be linked successfully and promptly with marketing, manufacturing, and financing. To encourage industry investment, it is possible to alter technological features, market size and certainty, or industry views of the market or technology.

Recommendations on Dispute Resolution Mechanisms

With the introduction of alternative conflict resolution, individuals now have a new means of resolving their disagreements. The rapid resolution of conflicts in Lok Adalat has gained widespread public support, resulting in the emergence of a new force in alternative dispute resolution, which will undoubtedly reduce the pending cases in law courts. There is a critical need for justice to be administered through alternative dispute resolution systems. Hence, in this portion, we have only laid down the recommendations for developing some schematic background and have not suggested specific solutions.

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The ADR movement must be accelerated as apart from significantly reducing the burden on the courts, this approach provides quick justice at the doorstep without incurring significant costs. If they are properly implemented, they will truly fulfil the aim of social justice for the disputing parties.

Competent Parties

Companies Previously, the Company Act 1956 governed the company's activities. According to the Union Government, the provisions of section 465 of the company act 2013 are applicable insofar as they pertain to the repeal of the 1956 Company Act. After gaining President of India's assent, the Company Statute 2013 repealed the old 1956 company act and took effect in September 2013. The act enacted by the Indian Parliament regulates different corporate operations such as director appointment, dissolving of the company, and so on. Additionally, these acts consolidate and reform the legislation governing corporations. The company act, 2013 makes several changes to the way businesses operate and establishes alternative dispute resolution as a primary mechanism for settling disputes between parties involved in corporate affairs.

Section 442 of the Companies Act provides an innovative method for parties participating at any juncture of the proceedings to choose between Mediation and Conciliation. The Government has notified the Companies (Mediation and Conciliation Rules, 2016 ("M&C Rules") in exercise of the powers granted by Section 442 read with Section 469 of the Companies Act. The M&C Rules establish a method for parties to resolve disputes via the use of alternative dispute resolution mechanisms at any level of the action all before the Union Government, "Tribunal," or "Appellate Tribunal." The National Company Law Tribunal ("NCLT") is a "Tribunal" established pursuant to Section 408 of the Companies Act, while the National Company Law Appellate Tribunal ("NCLAT") is a "Appellate Tribunal" established pursuant to Section 410 of the Companies Act.

The M&C Rules are significantly different from the previous mediation and conciliation provisions in India. The provisions of the M&C Rules are largely modelled after the Mediation Rules and conciliation provisions of the Arbitration & Conciliation Act, 1996 (hereinafter called as the A&C Act). However, the M&C Rules have been amended to include the following new provisions:

• Rule 6 allows for the appointment of a Mediator or

Conciliator and requires the Union Government, the NCLT, or the NCLAT to refer outstanding matters to mediation or conciliation upon receipt of an application in Form MDC-2 together with the required fee. The ADR processes of mediation or conciliation may be launched with the parties' permission or when the Court determines that there is a possibility of resolution through ADR procedures. • During ten days before to a session, or within a shorter time period at the mediator's or conciliator's discretion, Rule 11 requires each party to submit the mediator or conciliator, and also exchange among themselves, a brief memorandum setting forth the problems to be resolved. Rule 11 is analogous to Section 65 of the A&C Act, except that Section 65 of the A&C Act requires the conciliator to request information. • Rules 25 and 26 appear to conflict with Sections 73 and 74 of the A&C Act. Parties may prepare and execute a written settlement agreement pursuant to Section 73, which shall have the same validity and effect as an arbitrary award on agreed terms delivered by an arbitral tribunal under the A&C

Act. However, pursuant to Rule 25, any settlement agreement reached during conciliation shall be transmitted to the Union Government, the NCLT, or the NCLAT, and pursuant to Rule 26, the Union Government, the NCLT, or the NCLAT shall make an order resolving the dispute in compliance with its provisions.

According to Rule 29, the parties shall refrain from initiating arbitral or judicial procedures in connection with an issue that is the topic of the mediation or conciliation, unless such actions are essential to safeguard the parties' interests. While the Rule is

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analogous to Section 77 of the A&C Act, Rule 29 also allows for a comparable restriction in the event of mediation.

Consumers While several ADR organizations have been established throughout the years. However, significant gaps persist, most notably in consumer knowledge of such disparate bodies. More significantly, consumers should understand that ADR aims to foster a more amicable resolution in which no one wins, and no one loses. Additionally, the Working Group Report on Consumer Protection emphasised its relevance, stating that ADR, namely mediation, is the most appropriate technique for a nation like India (Planning Commission of India, 2017). Increased consumer knowledge of ADR bodies can therefore significantly alleviate the otherwise rising burden on consumer forums. To do this, efforts should be made to actively promote its presence among customers across states.

The Supreme Court of India has frequently emphasised the need to resolve disputes through an institutionalised ADR process (Supreme Court of India, 2005; Supreme Court of India, 2013). However, it was in the Afcons Infrastructure Ltd. case (Supreme Court of India, 2010) that the Supreme Court determined that all consumer disputes, including those involving a trader/supplier/manufacturer/service provider seeking to protect his business/professional reputation and credibility or product popularity; disputes between suppliers and consumers; disputes between customers and banks; and disputes between developers/builders and customs, are governed by the Consumer Protection Act.

Additionally, the Consumer Protection Bill of 2015 promotes mediation as an alternative dispute resolution option. The mediation shall be conducted under the auspices of the consumer forum, with a mediator chosen by the National Commission, a State Commission, or a District Commission, as applicable. The mediator will resolve the disagreement between the participants to the complaint by facilitating direct communication between them or by facilitating individual communication.

According to Section 7 of the A&C Act, arbitration agreement means “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.” In M/S Emaar Mgf Land Limited v. Aftab Singh & Anr case, (Supreme Court of India, 2018) the following was discussed in length:

“Whether the Arbitration Act mandates Consumer Forums, constituted under the Consumer Protection Act, 1986, to refer parties to arbitration in terms of a valid arbitration agreement, notwithstanding other provisions of the Arbitration Act and the Consumer Act?”

The Consumer Protection Act's section 80 (2) states that when the District Commission, State Commission, or National Commission refers a consumer dispute for mediation, the mediator appointed by such Commission shall consider rights and obligations of the parties, usages of trade, as well as the circumstances that gave rise to the dispute.

Foreign bodies

For the first time in contemporary India, ADR as a technique of conciliation was established and recognized by legislation under Labour Law, notably the 1947 Industrial Disputes Act. Statutorily, conciliation has been acknowledged as a good way to resolve disputes between employees and management. Later in 1996, the Arbitration and Conciliation Act was passed. The legislation on Arbitration and Conciliation is nearly identical to that found in other developed nations like the United States. The new Act ensures that everyone, regardless of nationality, has equal access to justice. It made several improvements to speed up the Arbitration process. The trust of foreign investors in India grew because of this.

Minimal court involvement in the execution of foreign seated arbitral decisions in India is followed to promote India's arbitration and foreign investment climate. Failure to prevail parties have fewer options for defending themselves under Indian Arbitration Law because of limits introduced via Amendments. Indian law on the enforcement of foreign awards is governed by

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the Arbitration and Conciliation (Amendment) Act 1996, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 ("New York Convention"), and the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 ("Geneva Convention"). The Geneva Convention no longer applies to awards that fall under the scope of the New York Convention.

Section 44, Part II of the Act and Article I (3) of the Convention define and elaborate that the state would only recognise or enforce awards related to foreign states in terms of reciprocity, that this will apply the convention's provision as to where disputes between the parties arising out of legal relationships that the state making the declaration considers commercial or pursuant to an arbitration agreement for which the First Schedule of the Convention specifies.

This means that a decision made in a non-notified state would not be considered a "foreign award" under the terms of Section 44 of the Act and thus would be unenforceable. Section 44(b) of the Act mandates that the Union Government issue an official notification to recognise a reciprocating party.

Governmental Bodies Two enactments made up the British Rule in India's Arbitration Law. One of these was the Indian Arbitration Act of 1899, which was modelled after the English Arbitration Act of the same year. The Arbitration Act of 1899 included the preceding town as well as any additional places to which the relevant provincial government could decide to expand it. The Second Schedule to the Code of Civil Procedure Code, 1908, applied beyond the purview of the Arbitration Act 1899.

The Commercial Courts Act, 2015 was amended in 2018 by the current government as part of its goal to make conducting business easier. The Commercial Courts Act of 2015 was modified by an Ordinance published by the President in May of this year. Pre-litigation mediation for all business disputes was

implemented as a result of this modification by the government.3 Section 12-A(1) provides that if no temporary remedy is necessary, the case will be directed to mandatory mediation unless an exception applies. This section enables the Union Government to permit pre-institution mediation by legal services authorities under the Legal Services Authorities Act 1987 by notifying the authorities.

The case of Oil and Natural Gas Commission v. CCE (Supreme Court of India, 1995) deals with this subject. When this judgement was handed down, one of the orders stated: "The cabinet secretary has instructed all departments and PSUs in Government of India and the Public Sector Undertakings to resolve all disputes amicably through mutual consultation or good offices of empowered government agencies or arbitration, and to eliminate litigation as a last resort."

Assessment of Certain Existing Mechanisms of Dispute Resolution and their Applicability

It becomes even more pertinent to look at the question of arbitrability and other forms of dispute resolution in case of antitrust claims considering a report published in 2014 that states that almost all cases adjudicated by CCI are pending before appellant authorities. It has been difficult for private claims from reaching their conclusion and consequently, aggrieved parties have been awaiting remedy (Anurag, 2020). The situation is bound to get dire when disruptive technology is brought into the picture. This portion deals with recommendations for arbitration and mediation as ADR mechanisms and how they can assist in resolving disputes.

Arbitration Disputes can be settled properly and equitably through arbitration, which is a procedure in which the disputing parties resolve their differences without resorting to litigation. There are several types of agreements, including ad hoc, contractual, institutional, and even legislative. In arbitration, the parties

3 Please refer to 253rd Report of Law Commission of India on Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015.

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choose a neutral third party to mediate their differences. In contrast to judicial settlements, this one includes less formalities and the arbitrator of each party's choosing. For settling many sorts of conflicts including international business issues, it is available with the established less burdensome method. Arbitration is the only enforceable and legally binding alternative to traditional judicial processes currently. In the arbitration procedure, a nominated independent thirdparty acts as an arbitrator and is expected to have previous expertise with it. Like a judge, their job is to listen to both sides and then make a judgement. They will, however, promote cooperative communication rather than an antagonistic one. Arbitration does not need any credentials, although if the case involves technical issues, understanding of the sector might be helpful. Mediation As an alternate conflict resolution method, mediation has recently grown in popularity. Through an interactive and facilitative approach, it enables the parties to reexamine their common interests and come up with creative solutions. Issues are handled via discussion and effective communication skills through mediation, which is voluntary and non-binding for the parties. Even if the mediator makes suggestions, the parties are free to ignore them if they aren't interested. As a notion, mediation in India hasn't been tied to any one piece of legislation or rule of thumb. Even though formal training isn't required, some mediators have previous legal expertise, which can be useful in certain types of conflicts. Disagreements over child custody and visitation arrangements can be resolved through the services of a resolution mediator who has received specialised training in these areas. A mediator's primary responsibility is to improve communication between disputing parties and guide them toward a resolution. When the Code of Civil Procedure, 1908 was amended in the late 1990s, Section 89(2)(d) was introduced, giving judges the authority to order conflict settlement through mediation, among other methods. Those changes had their legitimacy called into question by Salem Advocates Bar Association v. Union of India (Supreme Court of India, 2003), which resulted in the creation of

the Law Commission, tasked with examining the changes' merits while also providing methods for speedy justice. Civil Procedure (ADR and Mediation) Rules 2003 were drafted in response to this development If a disagreement can be resolved through mediation, it will be. This is the procedure in which a mediator chosen by the parties or by the Court applies the ADR Rules to settle it. Online Dispute Resolution Technology is used in the ODR field of dispute resolution to make it easier for disputing parties to settle their differences. Arbitration, negotiation, mediation, or a mix of these methods, in general are used in this process. Therefore, many people compare it to ADR's online counterpart. Using online technology like teleconferencing and new approaches like ODR complements conventional methods of resolving conflicts (Teitz, 2004 pp. 985, 990-95 ). As a result, a successful ODR is one that produces results that are on par with or better than those obtained through an ADR procedure. In recent times, courts have adopted a new technology that includes artificial intelligence to create a digital "mediator" that analyses large data to make better choices. These new methods range from a simple email to video conferencing and instant messaging. This method focuses on negotiation and mediation in the online environment, although ODR approaches include anything from negotiation and mediation to modified arbitration and modified jury procedures. Websites that employ mediation strategies to assist resolve conflicts are scrutinized and evaluated in detail. Negotiation Mediation and negotiation have a lot in common. Rather, it is a process through which the participants to a disagreement settle their differences amicably. Parties can share ideas, discover irritating differences, find a solution, and obtain a commitment from each other to reach an agreement by going through the negotiating process. The two sides come to an agreement on a course of action and strike a deal based on their respective interests. These people strive to find a unique solution that benefits both. People bargain in nearly every setting, from the living room to the courtroom, due to the mutual benefits. Dispute resolution in this manner is the most prevalent and most conflicts are resolved as a result. If negotiations fail, a neutral third party will have to step in to help

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find a solution. Both parties work together to find a solution that benefits both throughout the negotiation process of bargaining. The parties sign a settlement agreement after successful negotiation, which includes the terms and circumstances of the agreement.

Conciliation A pre-dispute conciliation agreement may have the effect of removing the Court's jurisdiction over the dispute's subject matter, and this agreement may only be saved by amending Section 28 of the Indian Contract Act, as it was done in 1972 to save the arbitration contract. Now that there's a law in place that covers both arbitration and conciliation, there's no reason why the parties shouldn't be allowed to reach an agreement in advance to settle future conflicts outside the court's jurisdiction, no matter how hypothetical the situation might be. Because the Act of 1996 regards conciliation settlement agreements certified by the conciliator as equal to awards on agreed conditions, which in turn are considered as equal to arbitral awards, this becomes especially important. In contrast to judicial settlement, which is more private, arbitration is more privatized. Regardless of whether the parties agree or disagree, the judge or arbitrator renders and imposes their decisions, with or without their permission or notwithstanding opposition. Parties to arbitration have significant influence over the modalities of the arbitral procedures, save for certain nonderogatory clauses, but they have no control over the decisionmaking process unless in the case of an award on agreed-upon conditions.

The Question of Third Parties

Alternate Dispute Resolution mechanisms are known to be private and confidential. This perpetuates the notion that relevant parties may be left out of the proceedings or that their needs and concerns are not fully addressed. While the above recommendations may alleviate this concern to some degree, encouraging class actions may assist to a great degree as well. It has been observed that in the United States, private antitrust claims frequently are brought as class actions. Having a plaintiff can make it highly feasible and lucrative to assert claims that

might have been too small to litigate on an individual basis. The American Arbitration Association supports this trend by adopting the "Supplementary Rules for Class Arbitration" which allow arbitrators to rule upon class certification, determine a class-wide award or settlement. These rules remove the presumptions of privacy and confidentiality that are normally expected. A class claim in arbitration thus gives the parties the same benefits as a federal court (Bush, 2018). It is a well-known fact that class action suits aren't that common or feasible in India. Having such a system of rules which encourages class actions in arbitration will allow third parties which are left out of the conversation in usual arbitration proceedings to be at the table. It may even allow them to be better represented than what we see n usual court proceedings in competition dispute cases. Not to mention how beneficial the removal of presumptions of confidentiality and privacy while retaining other benefits of ADR would be. As East Asian countries are aiming towards becoming global economic powerhouses, the need stronger arbitration framework is becoming stronger. One such example is that of South Korea; the country's arbitration community is looking to propose arbitration rules that are tailored to suit class action arbitration in Korea. Legal scholars are turning towards the abovementioned American framework as a guiding tool (Kim, et al., 2021).

The Question of Privity, Privacy and Confidentiality in Dispute Resolution Mechanisms

The question of Privity Simply put, the "Doctrine of Privity" means that a contract cannot provide anybody else the rights it confers or impose the duties that flow from it (Himachal Pradesh High Court, 2000). For contracts with third-party beneficiaries, it may be important to figure out who is legally responsible or who should be shielded from being harmed by inevitable breaches that occur periodically. The whole discussion regarding the doctrine's importance, practical difficulties, and ramifications stems from this point. The offer-and-acceptance model of consent has an innate appeal because of this definition of privity. Investor-state consent mechanisms, on the other hand, are wholly inappropriate for the current legal position.

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The question of privacy and confidentiality: First and foremost, to comprehend confidentiality, it is important to make a distinction between confidentiality and the similar notion of privacy. They may be likened to the two halves of a single coin, yet their breadth and range are vastly different. By excluding other parties from arbitral proceedings in favour of privacy, the arbitral process keeps sensitive material hidden from prying eyes. The goal of confidentiality is to keep other parties out of the arbitral process. It puts a responsibility to keep information about the arbitral procedures secret on the parties to ensure that they don't leak it. For example, this may include information about parties such as the plaintiff and/or defendant. Because privacy imposes a heavier burden than privacy on the parties to the Agreement, it discourages third parties from intervening in the proceedings while also prohibiting them from disclosing any information they learn during the course of the hearings or thereafter. So long as Section 126 of India's Indian Evidence Act 1872 required advocates to keep client conversations, counsel, and documents secret (including emails), parties to business disputes were discouraged from using arbitration as a preferred method of dispute settlement in India. Indeed, in its report to the Indian government, the High Level Committee to Review the Institutionalization of Arbitration Mechanisms in India, led by a retired Indian Supreme Court judge, Justice B N Srikrishna (Srikrishna Committee), suggested that: To preserve or enforce legal rights, or to enforce or challenge an award in court or before judicial authorities, new provisions may be incorporated into Part I of the ACA providing for secrecy of arbitral proceedings unless disclosure is compelled by legal obligation. Imposing secrecy obligations on the parties has several facets in arbitration. According to some, choosing Arbitration over Litigation has several advantages. The privacy and interests of the parties are safeguarded while the issue is quickly and efficiently resolved. This is particularly valid for businesses, as they can safeguard "commercially sensitive information." While there are several benefits to such a responsibility, we must also recognise the numerous drawbacks. The challenge of cutting out exceptions is the first of these drawbacks. In the first place, the question of legitimate public interest should be raised. This

is an anomaly that will necessitate judicial interpretation in any country. According to the Indian context, this exemption, if added to Section 42A, may lead to a similar outcome as Section 34's public policy basis. Other exceptions to the secrecy requirement necessitate legislative intervention. For instance, insurance companies might well be required to disclose to each other or different stakeholders in the company may be needed to make disclosures; disclosures in parallel arbitrations (or two-tier arbitrations) in which both the parties and the Tribunal may be the same but the subject matter of the dispute be different.

A noble endeavour by the legislature to stay up with global trends in arbitration law and promote arbitral proceedings as a preferred method of conflict settlement is undermined by the small print of section 42-A, which fails to provide clear answers to several important concerns. When it comes to effective confidentiality provisions, the questions of who, when, and what can only be addressed half-way. Institutional arbitration procedures incorporate confidentiality requirements that the courts may defer to when deciding cases. Conclusive Assessment

Alternative dispute resolution (ADR) was praised by academics and executives alike in the 1980s as a reasonable and costeffective approach to keep businesses out of court and off from the type of litigation that devastates both victors and losers just as badly. Over the next several years, the ADR policy statement proposed by the Center for Public Resources was adopted by more than 600 big enterprises, and many of these firms claimed significant savings in terms of both time and money. A peaceful society necessitates the use of dispute resolution processes. People and groups can preserve cooperation by using dispute resolution processes to settle and check disputes. In this sense, it may be argued that it is the sine qua non of social existence and a necessary condition for maintaining the social order. Due to the various societal demands and conditions, several dispute resolution approaches have emerged. Disputants can learn about their differences and use that knowledge to determine which form of dispute resolution is appropriate for them. A case filed before a court of law is the most often used dispute

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resolution procedure for resolving a disagreement in its various forms. Seeing things from a bird's eye view, it's safe to say that, in the legal adjudication process, someone will lose. As it allows everyone concerned to be informed and uncoerced judgments, mediation has the benefit of leading to finality. In mediation, disputes are addressed by mutually agreeable dialogue between the parties. When compared to litigation, mediation is more adaptable, quicker, and less costly. In April and May of 2013, the European Parliament and Council enacted the Consumer ADR and Consumer ODR Directives. The Commission sets regulations on ADR processes resulting from contracts for the sale of products and the supply of services in the Directive on Consumer ADR. This Directive mandates the implementation of the basic rules: access to ADR organisations and processes, expertise, impartiality, transparency, effectiveness, justice, liberty, legality, and protections (High Court of Justice, 2015). Consumer ADR agreements are addressed under EU legislation, which provides some broad guidance on their legality. The recently approved Consumer ADR Directive established the validity of such ADR agreements and Consumer ADR agreements are going to become good law. This directive was recently accepted by consumers.4 ADR is currently only available in highly regulated industries with a legal framework. Additionally, EU legislation promotes or compels Member States to make sure that consumers in certain industries have easy access to ADR. These industries do have a wider overall ADR coverage and a larger usage of ADR by customers, as evidenced by statistics given by ADR schemes with the biggest caseloads. By mandating cross-border ADR across sectors, a specific EU legislative instrument may expand on past (sectoral) legislative requirements that have encouraged the creation of ADR systems in Member States. It's possible that an EU legal instrument might handle cross-border ADR explicitly or address ADR in general.

4 See Michal Malacka, “Multi-Door Courthouse Established through the European Mediation Directive?” [2016] 16 ICLR 1, 127.

The most suitable ADR mechanisms Comparative research reveals that mediation is a type of

accelerated negotiation when looking at the processes of

"mediation" and "arbitration". The outcome is in the hands of the parties. The mediator is powerless to decide. Only the parties to the dispute can agree to a settlement. The exchange of information is always done on a voluntary basis, and it is usually kept to a minimum. The parties share information to help them come to a decision on their dispute. Using a mediator's guidance, the parties are better able to identify and comprehend one other's points of view and interests. The process of mediation is informal, and the parties take an active role. Individual sessions with lawyers are done jointly and privately as part of this procedure. The mediator does not, however, make decisions. A mediator serves as a catalyst for dispute resolution. He's in charge of things a lot more now. The mediation procedure provides the parties with several resolution possibilities. On the other hand, ODR is a more comfortable, cost-effective, and efficient mechanism. ODR, being a newer kind of alternative dispute resolution, may have the advantages of being more cost-effective, faster, and more convenient than traditional ADR and litigation. Because of this, ODR has the reputation of being cold and impersonal, which puts parties and mediators at a larger emotional distance from one another. When it comes to online dispute resolution (ODR), the standards of evidence and process don't apply as strictly as they do in other forms of conflict settlement. Parties can take part in a process that is tailored to their specific requirements because of this. It promotes a cooperative attitude as opposed to a combative one. Speedy Dispute Resolution: ODR has the benefit of being faster at resolving issues than traditional ADR. Whereas ADR might take months to resolve a dispute, ODR claims to settle them in a matter of weeks. In addition, because of the internet's international character, parties and their counsels in various time zones can communicate with less difficulty. Furthermore, the internet makes it possible for parties to quickly and readily accessible data and other case-related information. Aside from being easily accessible, e-mail makes scheduling ODR procedures easier because no phone or fax numbers are tagged throughout the process.

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ODR is a non-confrontational technique: It allows the adjudicating authority to settle the disagreement impartially and only based on the merits of the case. Another benefit of asynchronous online discussion is that it gives the participants time to think about their viewpoints before responding. Such a system is also useful in balancing out any economic or other power imbalances that may exist between the disputants, since there may be cases in which one side is a small-time producer or supplier, while the other party is a worldwide corporation. Neutral forum: The internet provides a neutral forum for adjudication as well as the "home advantage" that one party has previously had. ODR is a confidential process: Using conflict resolution procedures is common because it allows disputants to openly discuss issues without fear of them being exposed to the public or to a court. Confidentiality should be regarded as significant or required by both parties, and this is typically the case.