Resolution of Disputes in the Age of Coronavirus: The Need for Online Dispute Resolution

Okay, let me introduce Dr. Serekan to our PhD class of 2021. Dr. Serekan has earned his PhD law from Grinnell University London and he has been one of the wonderful researchers around us like and he focused on online dispute resolution with special reference to online trade what's going on in the world. So what we will see that he will talk to us on doctrinal research method vis-a-vis his research area. So the floor is yours sir so you can talk to our students and hear me. Good afternoon ladies and gentlemen. I would like to thank Dr. Daniel Khan for inviting me just during to the my PhD and some part of the my LLM I was working on online dispute resolution and I realized that why like countries such as Turkey, Pakistan why we are not using that you know the facilities you know when we look at advanced legal systems such as EU, US we are few steps back of this country. So we need more enhanced out of the education system through online dispute resolution. So that's why I was during my PhD and LLM I was working online dispute resolution. Before that a little bit I would like to talk about how we can conduct out research method. Basically the most students during to the marking or during to the LLM or PhD we are observing that when they cited articles when I asked that which articles do you how you choose articles and how you cited this one they are saying they are always saying that you know we are going to reading this article they cited that article that's why we cited that article is not true. So why how we can do our you know the research properly basically there is some thematic literature review you know the way we can you know web of science you heard that I think that's good as well. When you log in a web of science and scoops one disadvantage of web of science is only you can access through that website under the Wi-Fi of the university you know. So when you go to the web of science when you search the keywords they will you will reach the result of the most cited paper. So you can go to the you know read this I mean that you know the most cited paper and look at you know you know in the doctoral research methodology you know we need to look at that you know we need to make the literature review first you know where literature start and what's the you know the gap in that literature and how we can fill in this you know literature. So when we go to the web of science you know the research website we look at the most cited papers and then we can see that you know the how research conducted what's the gap and how we can fill in that gap. So what's the meaning of doctoral research methodology? Doctoral research methodology means that you know what's the current issue in your topic you know you need to have the specific research question yeah and in that under that research question you have the issues you know you will look at what's your issues and how you know law apply that issue means that doctoral research methodology. You know we need to be careful and when we prepare the all the you know the bibliography we need to use the basically the systematic literature review. Today I will talk more about online dispute resolution. Before the coronavirus you know I start to work on that nowadays is the most famous one because you know people cannot meet in person and they cannot travel so that's why you know the most of the you know the countries suddenly move to online dispute resolution. What is the online dispute resolution means? You know there are there is no widely accepted definition of online dispute resolution. One will look at there are the two types two definitions of online dispute resolution. One is described by American Bar Association as well they said any dispute resolution body systems combines with information communication technology can be referred as an online dispute resolution. When we accept that definition it means that any dispute resolution system including I mean that traditional litigation I mean the court system will be one day combined with the information communication technology will be described as a online dispute resolution. On the other hand some scholars in literature they describe online dispute resolution only a combination of alternative dispute resolution which means you know arbitration, mediation, negotiation when they combine combines with information communication technology can be described as a online dispute resolution. When we look at the practice in the most cases online dispute resolution means a combination of alternative resolution with information communication technology. You know in Turkey I believe that Turkey and Pakistan have the similar culture so that's why you know we have the similar approach the law as well. So really you know we are the back of the some jurisdiction system like EU and U.S. because they are very advanced they have the very advanced legal system. So when we look at the court system in Turkey especially a period of the time takes court is in the first instance court it takes more than two years. So when we look at that you know the people will have the they can appeal the decision of the court as well. Roughly we can say in order to reach a final judgment will take roughly four and five years. So it means that there's a delay justice so delay justice is not justice you know that is a common sentence. So that's why we need to meet the requirement of we are living in the digital society we have the day you know the smartphones maybe we are the number is not accurate to the numbers of the you know the European Union and U.S. regarding buying online shopping online. I mean that you know which lies in the information communication technology but we can say that day by day the number of the using internet and using the information communication technology in professional activities increasing day by day. But when I look at the statistic which provided by statistics in the most cases you know in Pakistan and also in Turkey as well the number of the you know the internet user are high but when we look at they are using internet in social media more you know rather than using in professional activities. The basically the people using their time while using internet in YouTube Facebook etc. So but day by day of course they are starting because you know when I during my PhD I compare the EU and Turkey but there are some economic challenges cultural challenges and legal challenges you cannot copy a legal reform to paste to your country you need to analyze the cultural challenges you need to remove the challenges as well. So it is not easy but it will take time but it is I mean that we need to that you know so because of the you know we didn't expect that coronavirus every places are outracked and the traveling you know is banned the meeting in person is banned so that's why you know we need to use that one. You know they were the number I mean that increasing of using online dispute resolution was okay but the result of that coronavirus speed the you know the increase the using number of the online dispute resolution. So when we I mentioned that online dispute resolution we can describe as a combination of alternative dispute resolution and information communication technology. You know the when a dispute arise between disputant parties the first thing comes to our mind in Pakistan or in Turkey I mean that in developing countries who has the same similar culture the first thing comes to our mind is to take that dispute to court. We are not thinking to resolve other disputes out of the court because we have we are very litigant you know the people so the first thing comes out of the mind is to take that dispute to court. So we need to think about the alternative resolution method especially mediation and arbitration but it is not enough because we need we are living in information communication technologies I mean that age so we need to upgrade that alternative dispute resolution because in the event when we compare the court system with alternative dispute resolution it provides of course flexibility I mean that saving time it is costly I mean that is cheaper but still you need to meet in person but because there is a difficulty like you need to travel you need to have face-to-face meeting for resolving dispute through online alternative resolution so that's why we need to there is a need for upgrading our alternative resolution body to online dispute resolution. The most common forms of online dispute resolution is online negotiation, online mediation, yeah online arbitration and online mediation. So basically in online negotiation you know the negotiation means there is no third party the parties without any third party they are trying to reach an agreement. There are two types online negotiation one is assisted negotiation another one is automated negotiation. In assisted negotiation the dispute is trying to reach an agreement if any case if they need any help third party is trying to involve in the process but in automated negotiation it is the totally you know the online there is like automatic system you know the people give the offer and another part cannot see others offer I mean that it is designed by the software software trying to lead to the you know the parties and parties trying to reach an agreement. Another part is online mediation you know maybe in the mediation there is a third party but we should be careful maybe that third party which we call a mediation is different than I mean that arbitrator because in mediator in the in the mediation third party doesn't have the right to give the decision just try to help people dispute to reach an agreement. On the other hand when we look at the arbitration arbitration is I mean that is it's in some literature they say it's alternative for the court but it is not because in arbitration disputing like you know when they apply to the you know the court there is a third party independent third party they are giving to the final decision arbitrator and that decision are decisions are binding on I mean that the parties you know there are more than I think 180 countries which is a part of the new york convention under that convention you know the the award arbitrate award will be enforced under that new york convention so that's why arbitration is giving like you know the final result and final result resolution so that's why in the most b2b dispute I mean that business to business dispute the part is willing to use arbitration. The last method we can say that mid-arb it's like combination of mediation and arbitration you know both mediation and arbitration has both advantage and disadvantage when we combine that we can bring the advantage of the both matters together such as in mediation the parties if they you know I mean that decline to or abound to continue the process they can but in arbitration they can't because if the parties start to arbitration process the final decision will be given by the arbitrator and that will be binding on parties but in mediation in any process of the you know the mediation parties can you know the bond from this process so we can combine the both advantage of the you know the mediation and arbitration together which we call that one med-arb. You know online dispute resolution maybe in the most cases you know culturally as I said in Turkey and in Pakistan I believe if I'm wrong please let me know in most cases even when we buy shirt we want to go to the you know Taj we need to have like lunch together having coffee tasted you know we are not ready move to the online you know the 100% so that's why we can't live with our culture if you want to I mean to buy a shirt say better to go to the meet with friends and you know having a coffee together or tea together and and then to buy the shirts maybe you are you maybe your priority is going to the I mean that to meet friends rather than having shirts so it is not easy to move to online dispute resolution so especially when we look at the huge the dispute which has the huge amount like it will be dispute maybe it is not easy to move online dispute resolution people even don't believe in you know in meeting a conducted person the people even doesn't believe I mean don't believe that the court so how they will manage to resolve that dispute online so it is not easy my suggestion is maybe like a country such as Pakistan can start from the from the beginning for B to C dispute like try that online dispute resolution for consumer dispute because there are other low value then if it reaches success then we can extend to I mean that huge value amount of the you know the dispute so better to have tested in consumer dispute when we look at you know most successful system where the most one is eBay every year they are resolving 60 million disputes every year in Alibaba you know more than 150 million disputes are resolved through online dispute resolution you know 50% shop today you know the dispute in eBay resolved amicly and could you imagine that 90% of that dispute result is so fair I mean that there is no human intervention you know so we can test online dispute resolution in small cases such as consumer dispute if it reaches success then we can extend to another dispute when we look at the legal framework of that online dispute resolution I would like to say that there is no binding online dispute resolution for international binding legislation but there are some you know developments that is the answer to technical laws on online dispute resolution which is not binding it's only for the recommendation also into the council of the European work there is some studies on online resolution mechanism as I said there is no binding international legislation on online dispute resolution you know when we look at alternative dispute resolution they have the similar if there is no specific they are trying to apply for the rules which is stated for alternative dispute resolution when we look at EU you have their specific regulation on online dispute resolution as I said online dispute resolution is a part of the alternative dispute resolution so EU has easy directive for mediation 2018 we can look at that regulation and specifically on online dispute resolution in 2013 EU introduced alternative resolution directive and online dispute resolution regulation 2013 that regulation EU audio regulation 2013 establish an online dispute resolution platform which came to import in 2016 that platform resolved only this consumer disputes of course that platform can be used only for disputes arising from online transaction which I am not agree on because you know when you go buy an iPhone on store you cannot use that platform but on the other hand when you buy online you can use that there is no difference of course there is some I mean the reason why they restrict that platform for only online transaction because in online transaction I mean that the bills I mean that evidence can be evaluated easily but that EODR platform try to I mean that resolve the dispute between member states so maybe the I mean that shopping transaction between member states will I mean that it will be difficult to I mean that our evidence but at least for the domestic dispute like I mean that dispute arising between a consumer who live in UK and between a trader who established in the UK can be I mean that at least I mean that accepted for the online transaction it's my opinion who can use that platform a consumer who live in the EU of course can use and the trader is based on the EU can use that platform that platform is free of charge that any consumer who I mean that login can stop with a complaint against a trader where when you can look at as well maybe you can work on how we can learn from the EU to apply to the Pakistan law you know because there is a successful example in the EU and the US as well so you can look at you can work on feasibility analysis of online dispute resolution in Pakistan because it is not easy as I said to copy I mean that transfer a legal rule from EU to Pakistan you need to it looks like you know you can't take a part of the body from one people to another to you know so you need to look at you know the cultural economic and legal challenges and then you can eliminate some parts of that you know the transfer transfer so when you go to the EU platform website then you can you go to to another slide one more please yes one more yes thank you consumer can submit the complaint in that OIDA platform OIDA platform without making transfer your that your application to trader. Trader has 10 days to respond to your message informing either he wants to or he or she wants to I mean that join to alternative dispute resolution because you are submitting online after that you need to to pass near need to reach an agreement on alternative dispute resolution bodies which will resolve dispute either trader can reply or not which will I criticize that one as well so when the party reach an agreement on choosing alternative dispute resolution body and then body will start to I mean resolve the dispute. There is some shortcomings of that EU platform because it's not known well people are not aware of using that one when you log in that platform they are asking the I mean the traders email address when we buy when we think that you know that platform resolves only transaction dispute arising from offline transaction online transaction story you know when you buy when you shop online you will receive a confirmation from the trader am I right so but in most cases that email confirmation email are don't reply email so you need to find proper email address of that trader to fill in that form otherwise you cannot send your at least trader will not be able to reach your email to reply your message another one is when you submit that your complaint that EU idea platform it is not compulsory for trader to reply you so they can be on silent because you know that EU idea platform is free of charge and in most cases it's free of charge for the consumers it means that trader will pay if they choose an idea body to resolve their dispute so as a trader traders why they want to they don't want to pay the you know the fee of the you know ADR I mean that fee so that's why they are not obligated to reply but my suggestion is maybe EU can provide fine to I mean that provide a fine for the fee of the you know that the ADR's fee otherwise you know I think applications will be closed because of if trader does that if a trader doesn't reply the message of the consumer when we look at the tax which was provided by EU at the 55 percentage of the you know the application are closed because the trader don't reply the message to the consumer so we need to make obligation for the traders to at least involve in the process well how we can develop that EU idea platform the basically we can use more I mean that's so fair the basically we can use the problem problem diagnosis which is that at least you know maybe you are thinking that there is a problem but maybe it's not in Turkey or in the EU we have the same if you buy an items or service in online you have the rights as refund yeah am I right but if you buy the same item in store you can have only the rights of the exchange you don't have the rights of the refund of course some I mean that brands or stores giving opportunities to refund but law says you know the if I mean that a store doesn't want to have refund only they can they are obligated to exchange but they are not obligated to refund yeah I don't I don't know how it works in Pakistan but in EU and in Turkey as I said if you buy items in online you have the rights to ask to refund but if you buy in store I mean that online transaction you have the rights to exchange not refund but the trader can extend that right it's okay so in any case you think that you have the rights of the refund which you are not so you are submitting that I mean that problem to your platform and it will be in that current situation it will be forwarded to the trader my suggestion is we can establish a problem diagnosis which firstly clarify whether there is no dispute or not maybe after that clarification a consumer will be satisfied and he or she will not be willing to continue another my suggestion is we we have we need to we should I think we should make I mean that mandatory for traders to involve in the process when we look at the characteristics of the consumer dispute in the most cases there are they are the low value dispute so importantly you know when we when a mediator or arbitrator involving in any process we need to give the fee for the I mean that arbitrator or mediator instead of that we can use more online negotiation as I said no third party involvement in the process we can't use the online negotiation I mean that as much as possible we need to utilize information communication technology not to allow I mean that the third party to involve in process because when a third party involving process the you know expenses of that I mean that that process will be costly so that's why as much as we need to use that platform I mean that and we need to use utilize that information communication technology as much as we can so I think it's enough if you have any question I can reply as I said we have the I can imagine that you know we have the same nearly same culture so of course when we implement I mean that when we work on the feasibility analyzer that platform in Pakistan of course it doesn't take time but maybe it will take five years but 10 years but you know you will will see that you know every will everything will go through the you know information communication technology inevitable so that's why we need to start to do from today. Thank you very much I was talking on mute it was informative for us and I was talking to my colleague that he's talking about one of the aspect of artificial intelligence yes we got questions for you and here we go so we got a practicing lawyer who got I think 15 years standing in court so he got his name is Niaz so he's a PhD candidate so he'll be talking to you. Thank you thank you very much it was very informative but actually while listening your lecture I was thinking about either do you still believe that living in Pakistan or in Turkey that we can afford such like workforce and human resource to open the online dispute resolution? You know before the coronavirus I was thinking that maybe it will take more time but you know result of the coronavirus shows that you know there is like speedy increasing using of the online dispute resolution you know people will be used to use you know before the coronavirus buying online was like around 30 percent in Turkey but now is like more than 60 70 percent you know because you cannot go to the shop and you cannot meet in person and there is in Turkey there is like Istanbul Arbitration Center maybe you heard about that one and also ICC International Chamber of Commerce they start to use before that of course they were the you know with that example a successful example using arbitration but now they are allowing the parties to join the online arbitration from the beginning to end you know so I think it will maybe it will take time but I believe in few years you know Pakistan also will remove the at least 50 percentage or 60 percentage that the dispute will be resolved through I mean that online at least I think so as a research you know we need to work feasibility you know what the legal challenges you know it is easy to break the law the regulation you know we need to look at the practice you know how whether people are ready or not even you know when I suggest our you know scholars here they say oh we are using FaceTime what's up you know we can meet I mean that we can like Zoom we are using but it's not easy that you know you need to have like have the you know the freedom to access to the internet at least the government has to provide free I mean that internet for the because the people doesn't have eligibility to use computer very well you know the dispute has the actual I mean that at least eligibility to use you know in the litigation one word change the result so they need to have the you know the power they don't I mean that as we had at the beginning into the weak connection if you don't hear a word maybe can be misunderstood and then change the result so of course we can you know having like online dispute resolution but there are some standards which we need to meet like you know affordability, confidentiality, security you know many like we need to have the some criteria as to having that online resolution platform it's still in virtuality sorry could you yeah I mean this is still I mean virtual plan not being executed anywhere in hardware in Turkey we start to use you know even been in Turkey in the court system they allowing having the online hearings you know you can allow to submit your the you know the your papers online and then hearings are conducted online but I think a few step backs I think in Pakistan am I right that one yes you you are thank you because I talked to some of my friends I said maybe we can work on a project together how we can improve the online dispute resolution in Pakistan but you know in fact some of our my colleagues told me that it will take time people are not ready for that even they are not ready buying the online but you know at least you will have the always my plan not only for that project for the all the project you need to be pioneer you need to take to the first I mean that's tough you know whether it will go well or not great great that's great and Agha and one thing I would Srikant, Dr. Srikant is hosting a conference which I have already shared in our PhD group so they are hosting a well-reputed conference and if you submit your paper you will have a chance to publish in scopus indexed or ISI master listing so it is also recognized by AGC and I believe that if you published in scopus indexed or ISI master listing so it is already x category and I believe that you all need to publish it so you can submit your articles once again with reference to what I have shared before in in the PhD whatsapp group so I will I will share it again if you want so you can submit thank you so much ideas with with you can just you know submit your abstracts now and at the end you can just you know get your articles published is there any other question I believe we got one question from our senior colleague so he has been teaching in this department since last 10 years or so I believe so he's Mirza Khurramdik and he's also practicing lawyer so Mirza sahib over to you. Assalamu alaikum Dr. sahib alaikum salam sir thank you. Dr. sahib I am after your lecture I was thinking on that how people will develop trust level on ODR system is it compatible in Pakistan? Yeah there are two ways as a beginning I told that what's what's the meaning of online digitalization for us you know if we accept that a combination of dedication with information communication technology that should be designed by the government yeah it should be provided by government like providing the online hearings accept online submissions yeah if we accept online I mean that dedication which combines with information information communication technology but in Turkey I don't know whether the Pakistan in the legislation of Pakistan allow or not but in Turkey you know there is some criteria to be I mean that to be mediator or arbitrator so that mediator arbitrator negotiation is an alternative dispute resolution you know anybody who can provide that you know that services so I don't know is there any criteria to be a mediator in Pakistan? Mediator in Pakistan do you have any do you know anyone? In Pakistan I think there is no such mechanism of government level. Okay in Turkey you need to pass the exam and you need to be educated on that mediation what you can do which I am doing in Turkey as well to establish a firm who giving the services of alternative dispute resolution system yeah method so anybody who apply you you are appointing a accredited mediator or arbitrator it depends on the freedom of the parties you know so under the freedom of the contract the parties are able to choose their mediator arbitrator to reach an agreement so that's why as I said if you want to move your litigation system to online dispute resolution that should be I mean that designed by the government but if you want to provide services on only alternative dispute resolution which combines information communication technology which is you can do that one by private companies. Great that's thank you thank you very much. Can we stop recording and live streaming? Sure.