Camille Paldi
The Islamic finance industry is at a crossroads…a juncture of either continuing forward as a tremendous success or bursting at the seams due to the lack of a unique and independent (and online) dispute resolution mechanism tailored specifically for Islamic finance, sukuk, and takaful. The whole world is experimenting with online dispute resolution (“ODR”) and it is about time that an individual, group, organization, or state take the initiative to develop such a system for the Islamic finance industry. In addition, such a system should contain a standardized dispute resolution contract for Islamic finance, sukuk, and takaful each separately for the harmonization and standardization of dispute resolution across the Islamic finance, sukuk, and takaful industries. Let us examine the case of Australia and Online Dispute Resolution to get the creative ideas flowing.
According to E. Wilson-Evered et al., “Online dispute resolution is a branch of dispute resolution, which uses technology to facilitate the resolution of disputes between parties.” (Wilson-Evered et al.) ODR is also considered an electronic form of Alternative Dispute Resolution, utilizing such techniques as arbitration, mediation, and conciliation assisted by the latest internet and other technologies.
In New South Wales, Australia, where the author has been previously admitted as a Solicitor, an initiative has been taken to produce an online court in inter alia the NSW Supreme Court, Land and Environment Court, District Court, and the Local Court. (Susskind, 2019, 173) According to Richard Susskind, “the forum allows judges and lawyers to exchange messages about cases rather than attending a physical court room.”
“Online court is an online forum which allows judicial officers and legal representatives in a case to exchange written messages about NSW Supreme, District or Local Court matters, instead of attending court to have the same exchange in person. Online court is only available to legal practitioners who are representatives in a case, and their nominated support staff.”
Susskind says, “the main purpose of this online court is to allow lawyers, and sometimes (but less often) self-represented litigants, to manage interlocutory or procedural matters.” (Susskind, 2019, 173) Susskind reports that, “Users are able to make various requests and judges can make corresponding orders. Procedure in the online courts is governed by a series of protocols.”
“In the Supreme and District Court, only some uncontested civil law matters are suitable for online court. A judge has to select a matter for online court, and invite legal representatives to participate. Online court matters are typically orders about court dates and when documents need to be filed.
In the local court, online court is currently only available for preliminary committal matters for strictly indictable offences being prosecuted by the Office of the Director of Public Prosecutions at the Downing Centre. The defendant must be legally represented. A magistrate may authorise an online court where the prosecution and defence legal representatives agree to its use.”
Susskind reports that there were over 100,000 registrations to use the online court in 2018 in Australia. Another online initiative, which has taken place in Australia, involves the internet and the Federal Court of Australia. “eCourtroom is a an online courtroom used by Judges and Judicial Registrars to assist with the management and hearing of some matters before the Federal Court of Australia or Federal Circuit Court of Australia.” (Federal Court of Australia, 2020) eCourtroom deals with such matters including, “ex parte applications for substituted service in bankruptcy proceedings; applications for examination summonses; and giving of directions and other orders in general federal law matters.” (Federal Court of Australia, 2020) eCourtroom is integrated with eLodgment, providing parties with a link between eCourtroom and eLodgment to facilitate the electronic filing of documents. (Federal Court of Australia, 2020)
“eLodgment is the electronic filing facility for the Federal Court of Australia and for the general federal law jurisdiction of the Federal Circuit Court of Australia (previously the Federal Magistrates Court). eLodgment may be used to commence an action in either jurisdiction by enabling the filing of initiating documents and supporting documents. Similarly, documents pertaining to existing matters may be filed using eLodgment as long as the filing party enters the file number. The document(s) remain accessible via eLodgment users can monitor the progress of their elodgments as well as review the processed document(s) through their Lodgment History. They can access the sealed electronic versions of the documents should they require them to email or print out for service.”
Furthermore, to make the process more transparent in the eCourtroom, Susskind says that “a transcript facility, viewable by the public and all parties, displays a record of all messages posted by the judges and the parties to the dispute.” (Susskind, 2019, 174)
“A transcript facility provides a record of all messages posted by the presiding Judicial Officer and the parties in any matter that is conducted on eCourtroom. This transcript is viewable by parties as well as the public. However, documents posted or filed can be viewed by the parties to the action only, the Judicial Officer and other Court officers.” (Federal Court of Australia, 2020)
Australia has taken certain steps towards the integration of Online Dispute Resolution and its’ judicial system. Let Australia serve as one of many examples for the Islamic finance industry and the creation of an ODR platform for Islamic finance, sukuk, and takaful.
In this brief article, the author has examined some of the initiatives of Australia in the field of Online Dispute Resolution in order to encourage the Islamic Finance Industry to start to model their own system of ODR for Islamic finance, sukuk, and takaful dispute resolution. The author encourages academics and practitioners to start to write and discuss about ideas and proposals on how to formulate a unique and independent online dispute resolution mechanism especially crafted for the Islamic finance, sukuk, and takaful industries.
