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Question/Answer |
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1 |
What is the objective of this
DDMAC? |
| |
Data Protection laws are being
established in India and other countries and are aimed at providing
protection to the Right to Privacy of the citizens of their
respective countries. At present Indian Personal Data
Protection Act is expected to be notified some time in the first
quarter of 2021 and would be called Personal Data Protection Act
2021. GDPR is already in place and so are the laws in several other
countries.
These laws provide that the Data Subjects (Or Data Principals)
shall be guaranteed certain rights which is exercisable against the
Data Controller (or Data Fiduciary) failing which certain
compensation may be payable. Most of these laws recognize a
contractual relationship between the Data Subject and the Data
Controller through the instrument called "Consent".
Additionally, the Data Controllers enter into contracts with
Joint Data Controllers or Data Processors and such contracts may
also contain certain remedies related to payment of financial
damages.
When disputes arise in such contracts, they need to be resolved
in the best interests of all the parties. The data protection laws
being a new genre of laws in the world, the Jurisprudence is still
under development. Hence resolving the disputes through Courts is a
long winding process calling for the use of Alternative Dispute
Resolution methods.
Since Data Protection laws are essentially addressing the
processing of data in electronic form, the parties involved are
familiar with the use of electronic means of communication including
E-Mails, Mobile based messaging systems and Virtual conferencing
systems.
Since FDPPI (Foundation of Data Protection Professionals) is a
pioneering organization in India which works in the domain of
Personal Data Protection with "Certification Programs for Skill
Development", "Implementation Frameworks" such as PDPSI (Personal
Data Protection Standard of India) for compliance management, it has
decided to extend its service to the Data Protection Community to
the field of dispute resolution through DDMAC. |
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2 |
How are DDMAC services being
delivered? |
| |
DDMAC is principally an ODR
(Online Dispute Resolution) service platform to be used by
Registered Mediators and Arbitrators. It works as a market place for
mediation and arbitration preferably in the area of data related
dispute resolution. DDMAC is an
Internet based service and an "Intermediary" under Information
Technology Act 2000.
DDMAC uses the underlying platform of Ujvala
Consultants Private Limited which is its technology partner.
The Mediators and Arbitrators are the users/customers of the service along
with the disputants and other participants.
Ujvala Consultants Private Limited (www.ujvala.com)
is a
private limited company promoted in 1994 by Naavi (Na.Vijayashankar).
DDMAC will be administered by an "Administrator"
who shall be in charge of managing the platform.
Each Registered Mediation or Arbitration account will be serviced
by an assigned "Registrar" who will be responsible for the
proper conduct of the operations. The Registrar will also be
responsible for Section 65B certification of the session. The
technology and know-how of Section 65B certification is provided by
Cyber Evidence Archival Center, also a division of Ujvala
Consultants Private Limited. |
|
3 |
What are the Different ADR
methods used by DDMAC? |
| |
DDMAC will in principle have
"Mediation" and "Arbitration". Before a dispute is committed to
either Mediation or Arbitration, the DDMAC will also facilitate
negotiation. DDMAC will also provide the services of an e-Ombudsman
where required. |
|
4 |
What is e-Ombudsman? |
|
. |
DDMAC will provide organizations
the facility of a knowledgeable Ombudsman whose services may be used
by the organizations on a contractual basis. The ombudsman will
provide his resolution to disputes that arise in the day to day
activities of a Data Processing organziation which is a non binding
suggestion provided in good faith based on the information made
available by the disputing parties |
|
5 |
What is Mediation? |
| |
Mediation is a well established
dispute resolution mechanism where the parties to the dispute agree
to use the services of a Mediator, to resolve their differences and
arrive at a mutually acceptable agreement which will be signed for
further compliance.
The resolution will be a mutual agreement and the Mediator does
not normally suggest solutions of his own. In a "Conciliation"
process, which is a modified mediation, the conciliator by consent
of parties may suggest solutions and facilitate the parties to
consider them and agree if found acceptable before confirming the
resolution through a signed agreement.
Mediation is non binding and confidential. At any point during
the mediation process the parties can call off the process.
A Mediation process may be ingrained in the contract between the
parties or may be decided when a dispute arises.
The rules under which DDMAC would conduct Mediation is separately
available. |
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6. |
What is Arbitration? |
| |
Arbitration is a process of dispute
resolution which is settled in accordance with the Arbitration and
Conciliation Act 1996 as amended from time to time.
The parties to an arbitration agree either in their commercial
contract or later when a dispute arises on the use of Arbitration,
under what law the Arbitration has to resolve the dispute, whether
the arbitration will be done on the platform of DDMAC, how the
Arbitrators would be appointed etc.
The Arbitration will result in the Arbitrator providing an
"Award" which could be acceptable to both parties or may be not
acceptable to any or both.
Though normally Arbitration is considered "Binding", in view of
the provision in the Indian law that disputes are subject to
"Adjudication", the Arbitration when carried out under the Indian
Data Protection law will be considered as "Non Binding" or "With
Recourse" and the parties if not satisfied may approach the
Adjudicator as provided.
The rules under which DDMAC would conduct Mediation is separately
available. |
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7 |
What is the role of FDPPI in
DDMAC? |
| |
DDMAC is a platform on which
Arbitrators can register and conduct ODR.
The Technology is being provided by ODRGLOBAL.
FDPPI is the facilitator of the Mediation and Arbitration.
The responsibility for Arbitration or Mediation is completely
absorbed by the Arbitrator/s.
FDPPI handles the money receipts and disbursal acting as
the escrow agent for holding the funds in trust for the parties.
All services are rendered by ODRGLOBAL as the technology and
operational partner directly to the Arbitrators.
FDPPI conducts necessary training to the participants using the
platform. |
|
8 |
Registration of Mediators/
Arbitrators/Counsels |
| |
The Arbitrators, Mediators and
Counsels who would like to use the platform may register themselves
with their profile which will be put up on the website for the
information of the litigants. |
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9 |
How will the Panel
of Mediators/Arbitrators composed? |
| |
Mediation is conducted by a single
Mediator. Arbitrations are conducted by preferably 3 professionals
one of whom shall be a Law graduate with at least 10 years of
experience.
The technical members shall also have at least 10 years of
experience with specialization in an area relevant to the resolution
of the dispute.
Mediators and Arbitrators shall be appropriately trained in
Arbitration Act and the relevant data protection laws to which the
dispute may relate to.
The litigants will chose one arbitrator of their choice each and
the chosen arbitrators themselves chose other member to make up an
odd number of panelists. The responsibility for the choice of the
arbitrators will be that of the disputing parties.
The arbitrators will elect one of them as the Chairperson for
ease of communication during the conduct of the hearings. Otherwise
all members of a panel are considered equal and the arbitration
award will be authenticated by all the members.
Arbitrators shall ensue that there is no conflict as per the
requirements of the Arbitration Act. |
|
10 |
What will be the Procedure
for conducting the Mediation and Arbitration? |
| |
The process will commence with a
"Request for Service" from one or more of the claimants indicating
the contract details and the respondents along with the brief report
of the dispute. On perusal and acceptance of the proposal, a
preliminary fee will be collected and notice for acceptance would be
sent to the respondents.
On receipt of acceptance by the respondents, DDMAC will suggest
the disputants to chose the Arbitrators from the available
registered members or others.
DDMAC will then notify the potential mediators and arbitrators,
obtain the details of their terms and if acceptable, will confirm
the appointment to the disputants.
After receipt of the escrow amount covering the arbitrator's fees
and administrative cost, DDMAC will set up an exclusive Arbitration
room which may be activated for the hearings.
Every Arbitration hearing will be duly recorded and certified
under Section 65B of Indian Evdience Act.
Copies of the recordings would be made available to each of the
litigants and the Arbitrators.
The litigants would be free to present documents, witnesses, etc
and conduct cross examination.
All sessions will be proctored for compliance of norms.
On completion of the hearings and arguments, the Panel will
release the award under copy to DDMAC after which the payment of
fees would be released to the Arbitrators. |
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11 |
What are
the Rules? |
| |
FDPPI as
the platform for the Mediation or Arbitration has a set of standard
rules mentioned on the website separately for the Mediation and
Arbitration.
Individual Arbitrators or the Arbitral Tribunals who use the
platform may have their own set of rules or adopt the standard
rules as provided.
The arbitrators who want to make changes in the standard rules
need to file a "Deviation Statement" to the registrar and the
registrar shall have the right to refuse changes in part or in full.
If no "Deviation Statement" is filed and approved, the arbitrators
are deemed to have adopted the standard rules in toto.
The disputing parties are requested to check the rules and agree
before they commit their disputes to the platform. |
|
12 |
Need for an
Arbitration Clause |
| |
Before the
DDMAC accepts the request from a claimant who invokes the platform,
the claimant has to produce the copy of the contract which contains
the required arbitration clause which has the consent of all the
parties to the dispute. Where the original contract does not have a
satisfactory clause, the Registrar would suggest adoption of a
modified clause as may be required before the request is accepted
for further action. |
