Arbitration

Updates

16 May 2017

The Arbitration and Mediation Centre of the World Intellectual Property Organisation will become an alternative dispute resolution (ADR) provider for the .eu and .ею top-level domains (TLDs), as of June 2017. As announced by EURid, the registry for the two TLDs, holders of a trademark, trade name, company name, or other rights will be able to use the services of the WIPO Arbitration and Mediation Centre to dispute potentially speculative and abusive .eu and .ею domain name registrations The Centre becomes the second ADR provider, in addition to the current Czech Arbitration Court.

16 Mar 2017

The World Intellectual Property Organization (WIPO), which administers Uniform Domain Name Dispute Resolution Policy (UDRP) cases, has reported that trademark owners filed 3036 UDRP cases in 2016, an increase of 10% over the previous year. Cybersquatting disputes relating to new generic top-level domains (gTLDs) rose to 16% of WIPO’s caseload in 2016, covering a total of 5374 domain names. The gTLDs with most disputed domain names were .xyz, .top, and .club. Country code top-level domains (ccTLDs) accounted for around 14% of WIPO fillings.

1 Aug 2016

The newly approved EU-US Privacy Shield establishes various alternative dispute resolution mechanisms, in addition to the possibility of raising complaints directly with the company. Individuals can bring cases of non-compliance with the Privacy Shield principles to independent dispute resolution bodies in the USA or the EU, which are to be provided free of charge. Individuals can also submit complaints to data protection authorities, and as a last resort, they have the right to invoke binding arbitration under the Privacy Shield Panel.

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Arbitration is a dispute resolution mechanism available in place of traditional courts. Such mechanisms are used extensively to fill the gap engendered by the inability of current international private law to deal with Internet cases. An example is the Universal Domain-Name Dispute-Resolution Policy (UDRP), which was developed by WIPO and implemented by ICANN as the primary dispute resolution procedure.

In arbitrations, decisions are made by one or more independent individuals chosen by the disputants. The mechanism is usually set out in a private contract, which also specifies issues as place of arbitration, procedures, and choice of law. International arbitration within the business sector has a long-standing tradition.

In comparison to traditional courts, arbitration offers many advantages, including higher flexibility, lower expenses, speed, choice of jurisdiction, and the easier enforcement of foreign arbitration awards. One of the main advantages of arbitration is that it overcomes the potential conflict of jurisdiction. Arbitration has particular advantages in regard to one of the most difficult tasks in Internet-related court cases, enforcement of decisions (awards). The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards regulates the enforcement of arbitration awards. According to this convention, national courts are obliged to enforce arbitration awards. Paradoxically, it is often easier to enforce arbitration awards in foreign countries by using the New York Convention regime rather than to enforce foreign court judgement.

The main limitation of arbitration is that it cannot address issues of higher public interest such as protection of human rights; these require the intervention of state-established courts. Arbitration has been used extensively in commercial disputes. There is a well-developed system of rules and institutions dealing with commercial disputes.

The main international instrument is the United Nations Commission on International Trade Law (UNCITRAL) 1985 Model Law on International Commercial Arbitration. The leading international arbitrations are usually attached to chambers of commerce.

Arbitration and the Internet

Arbitration and other alternative dispute resolution systems are used extensively to fill the gap engendered by the inability of current international private law to deal with Internet cases. For example, the Universal Domain-Name Dispute-Resolution Policy (UDRP) was developed by WIPO and implemented by ICANN as the primary dispute resolution procedure. Since the beginning of its work under UDRP in December 1999, the WIPO Arbitration and Mediation Center has administered more than 22,500 cases and with the introduction of new gTLDs, new challenges are expected to occur.

The UDRP is stipulated in advance as a dispute resolution mechanism in all contracts involving the registration of gTLDs (e.g. .com, .edu, .org, .net) and for some ccTLDs as well. Its unique aspect is that arbitration awards are applied directly through changes in the DNS without resorting to enforcement through national courts.

Arbitration provides a faster, simpler, and cheaper way of settling disputes. However, the use of arbitration as the main Internet dispute settlement mechanism has a few serious limitations.

  • First, since arbitration is usually established by prior agreement, it does not cover a wide area of issues when no agreement between parties has been set in advance (libel, various types of responsibilities, cybercrime).
  • Second, many view the current practice of attaching an arbitration clause to regular contracts disadvantageous for the weaker side in the contract (usually an Internet user or an e-commerce customer).
  • Third, some are concerned that arbitration extends precedent-based law (US/UK legal system) globally and gradually suppresses other national legal systems. In the case of e-commerce, this might prove to be more acceptable, given the already high level of unification of substantive rules of commercial law. However, an extension of precedent law has become more delicate in sociocultural issues such as Internet content, where a national legal system reflects specific cultural context.

Events

Instruments

Conventions

Link to: Convention on Cybercrime (Budapest Convention) - Article on dispute setlement (arbitration) (2001)

Other Instruments

COMESA Model law on electronic transactions

Resources

Publications

Internet Governance Acronym Glossary (2015)
An Introduction to Internet Governance (2014)

Reports

Report of the Director General to the WIPO Assemblies (2015)

GIP event reports

ICANN58: GNSO-GAC Facilitated Dialogue on IGO & Red Cross Protections (Session 2) (2017)

 

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