Arbitration

Updates

22 Aug 2017

Mandatory arbitration clauses become more frequent in all type of contract with consumers, especially in Banking sector, which is why U.S. Consumer Financial Protection Bureau started research about its effect. After many years of examination they proposed the rule that should preclude companies of depriving consumers of right to class action by accepting arbitration clauses. Class actions are very important mechanism in consumers disputes, given the unequal position of the parties in dispute, the value of the dispute, the cost of arbitration and many other factors. This is it is important to enable consumers to join together in claims over same manner since in this manner they can initiate actions that in other case would not be feasible, if they would be up to individual consumer. This decision is still waiting for Senate to give final call.

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.

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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

Actors

(WIPO)

WIPO has developed, together with the

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WIPO has developed, together with the Internet Corporation for Assigned Names and Numbers, the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, WIPO’s Arbitration and Mediation Centre provides dispute resolution services for second level domain name registrations under generic top-level domains (gTLDs). The Centre also administers disputes under a specific policies adopted by some gTLD registries (e.g. .aero, .asia, .travel). In addition, the Centre offers domain name dispute resolution services for over 70 country code top-level domains (ccTLDs). WIPO has developed a ccTLD Program, with the aim to provide advice to many ccTLD registries on the establishment of dispute resolution procedures.

(ICC)

ICC engages in the WTO particularly representing micro, small, and medium enterprises (MSMEs).

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ICC engages in the WTO particularly representing micro, small, and medium enterprises (MSMEs). In 2016 ICC issued a report calling for a new WTO agreement on e-commerce. ICC’s objective is to have an e-commerce framework that is more open to MSMEs. The report recommends three main actions: a capacity building fund for SMEs; making trade more efficient for SME for instance through harmonised tariffs for low value items; and global rules to support consumer trust in the digital economy. ICC has also carried out research on trans-border data flows.

(WTO)

The WTO’s involvement in e-commerce-related issues started in 1998, when the Ministerial Conference adopted th

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The WTO’s involvement in e-commerce-related issues started in 1998, when the Ministerial Conference adopted the Declaration on Global Electronic Commerce, which called for the development of a work programme on e-commerce. The programme, also adopted in 1998, provides a definition for e-commerce and sets out responsibilities for WTO bodies in e-commerce-related areas. Other e-commerce-related initiatives undertaken by the WTO include: a moratorium rendering electronic transmissions free of custom duties among WTO member states; a dispute resolution mechanism which addresses, among others, cases involving electronic transactions; and the annual WTO Public Forum. There are ongoing discussions among WTO member states as to whether the organisation should play an increasing role in e‑commerce.

(ICANN)

ICANN is responsible for coordinating the evolution and operation of the Domain Name System.

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ICANN is responsible for coordinating the evolution and operation of the Domain Name System. The organisation coordinates the allocation and assignment of names in the root zone of the DNS, and the development and implementation of policies concerning the registration of second-level domain names in generic top-level domains (gTLDs). It also facilitates the coordination and evolution of the DNS root name server system. When it comes to gTLDs, ICANN concludes agreements with registry operators (for the administration of each gTLD), and accredits registrars. In the case of country code top-level domains (ccTLDs), ICANN only goes as far as (re)delegating them on the basis of some high-level guidelines.

(EC)

Over-the-top services, next generation networks, the collaborative economy, and artificial intelligence are am

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Over-the-top services, next generation networks, the collaborative economy, and artificial intelligence are among the issues the European Commission is paying particular attention to. The Electronic Communications Code proposed by the Commission in September 2016 plans to introduce some level of regulation for OTT services. Encouraging the deployment of NGN networks able to better support the provision of converged services is a priority for the Commission, as part of its Broadband Strategy and Policy. The EU executive body has also issued guidelines and policy recommendations for the collaborative economy, while its Digitising European Industry strategy identified artificial intelligence and robotics are cornerstone technologies to be supported.

(UNCITRAL)

In line with its mandate to contribute to the harmonisation of international trade law, UNCITRAL has drafted s

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In line with its mandate to contribute to the harmonisation of international trade law, UNCITRAL has drafted several documents of relevance for matters concerning Internet and jurisdiction. Examples include the Model law on electronic commerce (1996), the Model law on electronic signatures (2001), and UN Convention on the use of electronic communications in international contracts (2005), and the Technical Notes on Online Dispute Resolution (2016). E-commerce continues to be an area of interest for the Commission, which has a dedicated working group focused on the legal dimensions of issues such as identity management, trust services, electronic transferable records, cloud computing, etc.

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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