• Journal of Arbitration Studies
• /
• v.13 no.2
• /
• pp.519-546
• /
• 2004

On June 27, 2002 Canadian Internet Registration Authority (CIRA) launched dot-ca domain name dispute resolution service through BCICAC and Resolution Canada, Inc. The Domain name Dispute Resolution Policy (CDRP) of CIRA is basically modelled after Uniform Domain Name Dispute Resolution Policy(UDRP), while the substance of CDRP is slightly modified to meet the need of Canadian domain name regime and its legal system. Firstly, this article examined CIRA's domain name dispute resolution policy in general. It is obvious that the domain name dispute resolution proceeding is non-binding arbitration to which arbitration law does not apply. However it still belongs to the arbitration and far from the usual mediation process. Domain name arbitrators render decision rather than assist disputing parties themselves reach to agreement. In this respect the domain name arbitration is similar to arbitration or litigation rather than mediation. Secondly it explored how the panels applied the substantive standards in domain name arbitration. There is some criticism that panelists interprets the test of "confusingly similar" in conflicting manner. As a result critics assert that courts' judicial review is necessary to reduce the conflicting interpretation on the test of substantive standards stipulated in paragraph 3 of CDRP. Finally, it analysed the court's position on domain name arbitral award. Canadian courts do not seem to establish a explicit standard for judicial review over it yet. However, in Black v. Molson case Ontario Superior Court applied the UDRP rules in examining the WIPO panel's decision, while US courts often apply domestic patent law and ACPA(Anticyber -squatting Consumer's Protection Act) to review domain name arbitration decision rather than UDRP rules. In conclusion this article suggests that courts should restrict their judicial review on domain name administrative panel's decision at best. This will lead to facilitating the use of ADR in domain name dispute resolution and reducing the burden of courts' dockets.

• Journal of Arbitration Studies
• /
• v.20 no.2
• /
• pp.131-149
• /
• 2010

Since the Arbitration Law of China took effect in 1995, arbitration has grown with the economy. At the end of 2009, there were 202 arbitration institutions in China. Among them, China International Economic and Trade Arbitration Commission(CIETAC) has adopted online arbitration and has settled internet domain name disputes since 2001. CIETAC Domain Name Dispute Resolution Center(DNDRC) has accumulated abundant experiences of online arbitration in the field of domain name disputes. Based on those experiences, on 1 May 2009, CIETAC implemented the CIETAC Online Arbitration Rules(Rules') to regulate the resolution of e-business disputes as well as other business disputes. With this background, this article aims to study the status quo, practices and issues of online arbitration conducted by CIETAC. For the purpose of the article, a general picture of online arbitration is outlined first, followed by introducing the steps of the online arbitration procedure. According to the 'Rules', the entire arbitration process is conducted using online communication methods which are cost-effective and efficient. To facilitate the development of online arbitration, legal barriers need to be removed. This article considers main legal issues of online arbitration in China and proposes amendment to Chinese Arbitration Law, in particular, the recognition of the validity of electronic arbitration agreements and awards.

• Journal of Arbitration Studies
• /
• v.17 no.2
• /
• pp.167-187
• /
• 2007

As Korea has reached a free trade agreement with the United States of America, it is required to provide an appropriate procedure to ".kr" domain name disputes based on the principles established in the Uniform Domain Name Dispute Resolution Policy(UDRP). Currently, Internet address Dispute Resolution Committee(IDRC) established under Article 16 of the Act on Internet Address Resources provides the dispute resolution proceedings to resolve ".kr" domain name disputes. While the IDRC's proceeding is similar to the UDRP administrative proceeding in procedural aspects, the Domain Name Dispute Mediation Policy that is established by the IDRC and that applies to disputes involving ".kr" domain names is very different from the UDRP for generic Top Level Domain (gTLD) in substantial aspects. Under the Korea-U.S. Free Trade Agreement(KORUS FTA), it is expected that either the Domain Name Dispute Mediation Policy to be amended to adopt the UDRP or the IDRC to examine the Domain Name Dispute Mediation Policy in order to harmonize it with the principles established in the UDRP. It is a common practice of cybersquatters to warehouse a number of domain names without any active use of these domain names after their registration. The Domain Name Dispute Mediation Policy provides that the complainant may request to transfer or delete the registration of the disputed domain name if the registrant registered, holds or uses the disputed domain name in bad faith. This provision lifts the complainant's burden of proof to show the respondent's bad faith because the complainant is only required to prove one of the three bad faiths which are registration in bad faith, holding in bad faith, or use in bad faith. The aforementioned resolution procedure is different from the UDRP regime which requires the complainant, in compliance with paragraph 4(b) of the UDRP, to prove that the disputed domain name has been registered in bad faith and is being used in bad faith. Therefore, the complainant carries heavy burden of proof under the UDRP. The IDRC should deny the complaint if the respondent has legitimate rights or interests in the domain names. Under the UDRP, the complainant must show that the respondent has no rights or legitimate interests in the disputed domain name. The UDRP sets out three illustrative circumstances, any one of which if proved by the respondent, shall be evidence of the respondent's rights to or legitimate interests in the domain name. As the Domain Name Dispute Mediation Policy provides only a general provision regarding the respondent's legitimate rights or interests, the respondent can be placed in a very week foundation to be protected under the Policy. It is therefore recommended for the IDRC to adopt the three UDRP circumstances to guide how the respondent can demonstrate his/her legitimate rights or interests in the disputed domain name. In accordance with the KORUS FTA, the Korean Government is required to provide online publication to a reliable and accurate database of contact information concerning domain name registrants. Cybersquatters often provide inaccurate contact information or willfully conceal their identity to avoid objection by trademark owners. It may cause unnecessary and unwarranted delay of the administrative proceedings. The respondent may loss the opportunity to assert his/her rights or legitimate interests in the domain name due to inability to submit the response effectively and timely. The respondent could breach a registration agreement with a registrar which requires the registrant to submit and update accurate contact information. The respondent who is reluctant to disclose his/her contact information on the Internet citing for privacy rights and protection. This is however debatable as the respondent may use the proxy registration service provided by the registrar to protect the respondent's privacy.

• Journal of Arbitration Studies
• /
• v.9 no.1
• /
• pp.291-322
• /
• 1999

The world of today faces a radical change, a new revolution, by the spread of the Internet. It is used not only for advertising but also for the exclusive rights in the field of information and communication, in add to the way of developing everyday our lives with world news, home-shopping, on-line education and so on. Actually, since the Internet Domain's Name(IDN) is unique over the world, the individual and the companies which provide information through the Internet have a keen competition to make a good IDN to memorize and organize all available information provided them. As a result, there are an increasing number of the cases where one company files suit against another for the validity of it's IDN so the policy to arbitrate and solute the cases is required. This paper is going to introduce the structure and the system of management for IDN. It will also discuss the efficient management of IDN, various case analysis of the dispute restraint and solutions, and the movement of improving the management procedure of IDN in WIPO. So we suggest to examine common disputes among IDN uses and solution methods for future problem at EC times. Therefore we have to establish the dispute solution system. Here are the two methods : one is that to establish a dispute solution organization. This organization which can conduct the new dispute solution procedure differs from the existing legislation system. The other is that to establish a dispute solution procedure i.e. the various dispute solution procedure for efficient dispute solution : council, inspection, mediation and arbitration. This procedure is conducted on-line due to features of the IDN disputes, also along with the current legislation system and the International dispute solution procedure. Because there is possibility the IDN disputes usually are connected with other countries. As there is no specific disputes solution procedure so far, we have to wait while development occurs that also striving to be coherent with and between the domestic and International solution procedure by helping to establish the International dispute solution procedure.

• Journal of Arbitration Studies
• /
• v.21 no.2
• /
• pp.113-131
• /
• 2011

Recently, the Internet Corporation for Assigned Names and Numbers (ICANN) announced the expansion of the number of generic top-level domains (gTLDs) beyond the current 22 gTLDs, and the gTLD Applicant Guidebook for ICANN's new gTLD program is now under consideration for approval. ICANN also introduces a "Trademark Clearinghouse" and the "Uniform Rapid Suspension (URS)" procedure to protect trademarks and expedite dispute resolution and save costs. The Trademark Clearinghouse is a central repository for information to be authenticated, stored and disseminated, pertaining to the rights of the trademark holders. Trademark holders would voluntarily provide data of their trademarks from all over the world, and it would assist a trademark watch service provided by the new gTLD registry for trademark holders and potential domain name registrants. The URS is a part of the new gTLD dispute resolution mechanisms created by ICANN to resolve cybersquatting disputes. A complainant in a URS proceeding must establish three elements that are very similar to the existing UDRP to succeed, but supposedly more expedited and cost efficient. Since the URS provides that it only protects court validated and registered trademarks, it is not clear whether unregistered marks used in commerce are protected under the URS. The URS escalates the complainant's burden of proof from a preponderance of evidence standard under the UDRP to a clear and convincing evidence standard. The notices to a respondent shall be sufficient if the URS Provider sends the notice of Complaint to the addresses listed in the Whois contact information. As registrants who wish to conceal their true identity often subscribe to the privacy/proxy service and the complainant's high rate of success in the UDRP proceeding is relevant to the respondents' default rate, the URS's simple notice requirement would deprive respondents of a fair opportunity to assert their rights over the disputed domain names.

• Journal of Arbitration Studies
• /
• v.15 no.2
• /
• pp.3-35
• /
• 2005

The meaning of Online ADR lies in the prompt and economical resolution of disputes by applying the information/communication element (Internet) to existing ADR. However, if the promptness and economical efficiency are overemphasized, the fairness and appropriateness of dispute resolution may be compromised and consequently Online ADR will be belittled and criticized as second-class trials. In addition, as communication is mostly made using texts in Online ADR it is difficult to investigate cases and to create atmosphere and induce dynamic feelings, which are possible in the process of dispute resolution through face-to-face contact. Despite such difficulties, Online ADR is expanding its area not only in online but also in offline due to its advantages such as promptness, low expenses and improved resolution methods, and is expected to develop rapidly as the electronic government decided to adopt it in the future. Accordingly, the following points must be focused on for the continuous First, in the legal and institutional aspects for the development of Online ADR, it is necessary to establish a framework law on ADR. A framework law on ADR comprehending existing mediation and arbitration should be established and it must include contents of Online ADR, which utilizes electronic communication means. However, it is too early to establish a separate law for Online ADR because Online ADR must develop based on the theoretical system of ADR. Second, although Online ADR is expanding rapidly, it may take time to be settled as a tool of dispute resolution. As discussed earlier, additionally, if the amount of money in dispute is large or the dispute is complicated, Online ADR may have a negative effect on the resolution of the dispute. Thus, it is necessary to apply Online ADR to trifle cases or domestic cases in the early stage, accumulating experiences and correcting errors. Moreover, in order to settle numerous disputes effectively, Online ADR cases should be analyzed systematically and cases should be classified by type so that similar disputes may be settled automatically. What is more, these requirements should reflected in developing Online ADR system. Third, the application of Online ADR is being expanded to consumer disputes, domain name disputes, commercial disputes, legal disputes, etc., millions of cases are settled through Online ADR, and 115 Online ADR sites are in operation throughout the world. Thus Online ADR requires not temporary but continuous attention, and mediators and arbitrators participating in Online ADR should be more intensively educated on negotiation and information technologies. In particular, government-led research projects should be promoted to establish Online ADR model and these projects should be supported by comprehensive researches on mediation, arbitration and Online ADR. Fourth, what is most important in the continuous development and expansion of Online ADR is to secure confidence in Online ADR and advertise Online ADR to users. For this, incentives and rewards should be given to specialists such as lawyers when they participate in Online ADR as mediators and arbitrators in order to improve their expertise. What is more, from the early stage, the government and public institutions should have initiative in promoting Online ADR so that parties involved in disputes recognize the substantial contribution of Online ADR to dispute resolution. Lastly, dispute resolution through Online ADR is performed by organizations such as Korea Institute for Electronic Commerce and Korea Consumer Protection Board and partially by Korean Commercial Arbitration Board. Online ADR is expected to expand its area to commercial disputes in offline in the future. In response to this, Korean Commercial Arbitration Board, which is an organization for commercial dispute resolution, needs to be restructured.