Chapter
1
INTRODUCTION
whereby the parties to a dispute agree to submit their respective positions
(through agreement or hearing) to a neutral third party (the arbitrator(s)) for
resolution.
style='font-family:"Times New Roman";mso-ansi-language:EN'>
upon contract law or, in the case of international arbitration, the law of
treaties, the agreement between the parties to submit their dispute to
arbitration is a legally binding contract. All arbitral decisions are
considered to be "final and binding." This does not, however, void
the requirements of law. Any dispute not excluded from arbitration by virtue of
law (e.g. criminal proceedings) may be submitted to arbitration.
style='font-family:"Times New Roman";mso-ansi-language:EN'>
domestic and international law, and arbitration can be carried out between
private individuals, between states, or between states and private individuals.
In the case of arbitration between states, or between states and individuals,
the Permanent Court of Arbitration and the
for the Settlement of Investment Disputes (ICSID) are the
predominant organizations. International arbitral bodies for cases
between private persons also exist, the International Chamber of Commerce Court
of Arbitration being the most important. The American Arbitration Association
is a popular arbitral body in the
exists in international sport through the Court of Arbitration for Sport.
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under domestic law, either party to an arbitration may appeal the arbitrator's
decision to a court, however the court will generally not change the
arbitrator's findings of fact but will decide only whether the arbitrator was
guilty of malfeasance, or whether the arbitrator exceeded the limits of his or
her authority in the arbitral award or whether the award conflicts with
positive law. Some jurisdictions have instituted a limited grace period during
which an arbitral decision may be appealed, but after which there can be no
appeal. In the case of arbitration under international law, a right of appeal
does not in general exist, although one may be provided for by the arbitration
agreement, provided a court exists capable of hearing the appeal.
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stipulated that judges may require either arbitration or mediation of certain
disputes as a first step toward resolution, family law (particularly child
custody) being a prime example.
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precedent and have great leeway in such matters as: active participation in the
proceedings, accepting evidence, questioning witnesses, and deciding
appropriate remedies. Arbitrators may visit sites outside the hearing room,
call expert witnesses, seek out additional evidence, decide whether or not the
parties may be represented by legal counsel, and perform many other actions not
normally within the purview of a court. It is this great flexibility of action
which, combined with costs usually far below those of traditional litigation,
makes arbitration so attractive.
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concerning the credentials or experience levels of arbitrators, although some
jurisdictions have elected to establish standards for arbitrators in certain
fields. Several independent organizations offer arbitrator training programs,
such as the American Arbitration Association, and thus in effect, credentials.
Generally speaking, however, the credibility of an arbitrator rests upon
reputation, experience level in arbitrating particular issues, or
expertise/experience in a particular field. Arbitrators are generally not
required to be members of the legal profession.
style='font-family:"Times New Roman";mso-ansi-language:EN'>
whose employees are not represented by a labor union is to establish an
organizational problem-solving process, the final step of which consists of
arbitration of the issue at point by an independent arbitrator. Most collective
bargaining agreements in organizations where employees are represented by a
labor organization stipulate that the final step of any grievance procedure
shall consist of arbitration.
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to increase the general credibility of the arbitral process, arbitrators will
sometimes sit as a panel, usually consisting of three arbitrators. Often the
three consist of an expert in the legal area within which the dispute falls
(such as contract law in the case of a dispute over the terms and conditions of
a contract), an expert in the industry within which the dispute falls (such as
the construction industry, in the case of a dispute between a homeowner and his
general contractor), and an experienced arbitrator.
Arbitration is a device whereby the settlement of a
question, which is of interest for two or more persons, is entrusted to one or
more other persons, the arbitrator or arbitrators, who derive their powers from
a private agreement, not the authority of a State, and who are to proceed and
decide the case on the basis of such an agreement.
Moreover, arbitration has also been defined as a mechanism for the settlement
of disputes between parties, either by a person appointed by themselves or by
relying upon procedures or institutions chosen by the parties.
In his definition of arbitration, Robert highlights the similarity between
arbitration and litigation: "Arbitration means instituting a private
jurisdiction by which litigations are withdrawn from the public jurisdictions,
in order to be resolved by individuals vested, for a given case, with the
powers to judge such litigations.'' href="#_ftn3" name="_ftnref3" title="">
Background of the Study
this day, transactions often take place through the World Wide Web. Commercial
transactions conducted on this medium are labelled as e-commerce. Nevertheless,
with the purpose for e-commerce to persist to flourish, legal confidence should
subsist such that commercial transactions completed online will be put in force
in the physical world. A dependable and enforceable dispute resolution
mechanism customized exclusively to the needs of the e-commerce milieu would
assist in the progress of such officially authorized certainty. Proposed
solutions on online dispute include online alternative dispute resolution (ADR)
intuitions that assimilate either a mediation or arbitration model, or some
sort of combination of the two. name="_ftnref4" title="">
As noted earlier, the idea of taking legal action in a foreign jurisdiction
under foreign rules is taken rather anxiously by all businesses engaged in
international transactions, including those now partaking in online
ventures. The best solution historically for the resolution of
international commercial disagreements has been conventional ADR services.
stated earlier, ADR is normally speedy, efficient and
confidential. Nevertheless, it is inappropriate for settling online
commercial disputes, predominantly for the reason that legal revolution have
insulated in the wake of the changes in the social, technological, and
commercial mores of cyberspace. Moreover, creative entrepreneurs and
academics have thus devised dispute resolution programs on the web.
aptitude to play a part in an online proceeding of this category generates a
freer market for dispute resolution, a market unfettered by anxiety of locality
or time. The accessibility of online arbitration services enables parties at
any place and at any time to commence or take action to a petition by accessing
a website and finishing electronic forms that steer them through the numerous
stages of the course of action. Moreover, the individual parties are able
to become accustomed to the process particularly to their precise needs and
utilize multimedia technology to conserve time and money.
This sleek and collectively obtainable process diminishes entry impediments to
arbitration for businesses and individual parties, providing a new means of
access to justice.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Initially,
the individual factions on the web more often wouldn’t have seen each other in
the physical world considering they live actually in different nations or
continents. In the real world, common consumers do not habitually go into an
international agreement. On the other hand, in the Internet, they would have
taken advantage of small transactions, which is unusually for them considering
they would have second thoughts in acquiring assets in the physical world.
Courts normally are slow and expensive. Furthermore, courts are considered as a
financially irrational channel to resolve disagreement arising from the World
Wide Web. The factions to such small or medium-sized disagreements in the web
will time and again have hardwearing economic enticement not to pursue court
proceedings, leaving the fraudulent party with a victory.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Additionally,
online arbitration could provide this effectiveness, because the alternative to
legal actions in courts is barely negligible and therefore much less costly.
Nevertheless, difficulties follow from this form of legal effectiveness. Online
arbitration compels the factions to give up some of their liberties, which does
not stimulate faith and which is the motive why arbitration at present still
deal with a sequence of legal hindrances. In terms of the claims of the
consumer, there is for instance a predicament of arbitrability beneath a
quantity of regulations. name="_ftnref10" title="">
it is acceptable that most of these legal hindrances are simply errors in the
legal system these obstacles are still there.
The international market offered by
e-commerce creates peril that may be taken in hand by incorporating arbitration
clauses in online contracts. Introducing numerous customers one click far from
carrying out a business deal that generates the risk of thousands of consumers
putting on record lawsuits in their domestic locations or a fusion in a class
action lawsuit.title="">
"Arial Unicode MS";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[11]
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>The
process of arbitration occurs when a third party is chosen by the parties
involved, or proposed by the institution selected by the factions, provides a
decision on a case while applying fundamental procedural principles.
Conventionally, similar to traditional arbitration, its online counterpart
resolves a dispute by making a practical decision.
This is what is labelled as the binding form of arbitration. It is a procedure
where judgments are enforceable by the powers that be. The philosophy of
binding arbitration online is that it comprises a mode of private judging, a
substitute for court litigation.
Thus, in the milieu commerce in the
World Wide Web, arbitration's supplementary remuneration of guaranteeing an
adjacent medium for resolution of the dispute and eliminating the presence of
class action lawsuit stand up to added importance.
Online arrangements may take account of an arbitration stipulation with a forum
assortment clause and a preference of law clause.
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necessity for a study that specifically tackles the impact of online arbitration the advancement of
technology. Specifically, this study intends to understand the effect of online
arbitration on the community, judicial system, technology and the business
itself. It will also try to fill in the difference, advantages and
disadvantages between traditional arbitration and online arbitration. Moreover,
this paper intends to answer the following queries:
traditional and online arbitration?
of traditional arbitration?
of online arbitration?
arbitrations?
arbitration?
There
is a significant difference between online arbitration and traditional
arbitration in terms of their performance.
There
is a significant difference between online arbitration and traditional
arbitration in terms of their advantages and disadvantages.
endeavor in understanding the nature of online arbitration by discussing issues
and by critically examining its effectiveness. This study will dig deeper in
probing debates with regard to arbitration.
Moreover,
this study will be helpful to the Internet user, researchers, educators, and
business practitioners in training and informing them in the area of
arbitration. It will help them in formulating social responsibility policies,
objectives, and strategies. It will also serve as a future reference for
researchers on the subject of arbitration. And importantly, this research will
educate individuals in doing businesses on the Internet.
Scope and Delimitation
This paper will attempt to determine the impact of online
arbitration to the current state of the community. style='mso-ansi-language:EN-GB'>Moreover, the literature covering the area of
arbitration, the overview of Internet businesses and policies related in
arbitration will be discussed.
This introductory chapter defines of
traditional arbitration. With the technological evolution, especially the
introduction of the World Wide Web, globalisation of business is on the rise.
However, problems as to the limits of national boundary and jurisdiction
consequently arise. This chapter addresses this concern in relation to
arbitration by discussing online arbitration and its effectiveness in resolving
online conflicts. The following chapter review literature on the advantages and
disadvantages of international commercial arbitration and the definition and
significance of online arbitration.
Chapter 2:
REVIEW OF RELATED LITERATURE
EN-GB'>This chapter will discuss the findings of researchers related to this
study. The content of this chapter is gathered and collated from its secondary
sources.
International Commercial
Arbitration
Arbitration is a device whereby the settlement of a
question, which is of interest for two or more persons, is entrusted to one or
more other persons, the arbitrator or arbitrators, who derive their powers from
a private agreement, not the authority of a State, and who are to proceed and
decide the case on the basis of such an agreement.
Moreover, arbitration has also been defined as a mechanism for the settlement
of disputes between parties, either by a person appointed by themselves or by
relying upon procedures or institutions chosen by the parties.
In his definition of arbitration, Robert highlights the similarity between
arbitration and litigation: "Arbitration means instituting a private
jurisdiction by which litigations are withdrawn from the public jurisdictions,
in order to be resolved by individuals vested, for a given case, with the
powers to judge such litigations.'' href="#_ftn16" name="_ftnref16" title="">
the definitions stated above, it is thus possible to outline the certain
essential attributes of arbitration. One of the cornerstones of arbitration,
which also serves as a semblance of an interim protection, is its consensual
nature.
The power and jurisdiction of arbitrators are determined by the intention of
the parties as reflected in their contractual agreement. Thus, the wording of
the arbitration agreement circumscribes the scope of an arbitrator’s power.
cordial nature of arbitration has led one writer to contend that arbitration is
a private system of adjudication and that it is the parties, not the State,
that control the powers and duties of arbitrators.
view is accurate to the extent that it underlines the private character of
arbitration. However, it is misleading in suggesting that parties to
arbitration have the exclusive right to assign powers and duties to the
arbitrators. Although arbitration is essentially a private process, the
assistance of national legal systems is in some cases sought to assist the
arbitration proceedings or to enforce an ensuing award. Furthermore, the
effectiveness of the arbitration process is guaranteed by the assistance of
national courts. name="_ftnref20" title="">
different perspectives on how to view arbitration. To illustrate, one
perspective is the contractual theory emphasizes the contractual nature of
arbitration. The jurisdiction and powers of an international arbitrator are, as
noted above, dependent on the mutual intention of the parties as reflected in
their agreement, and without their agreement there can be no valid arbitration.
Another perspective is the jurisdictional theory focuses on the authority of a
State to regulate all arbitrations conducted within its territory. The theory
maintains that the validity of the arbitration agreement, the powers of the
arbitrators, and the enforcement of the arbitral award all derive from a
particular national legal system.name="_ftnref21" title="">
In this sense, arbitration cannot be carried on without the regulation of a
national legal system.name="_ftnref22" title="">
another view is the mixed or hybrid theory recognizes the dual influence that
defines the nature of arbitration. As its originator, G. Sauser-Hall, points
out, "although deriving its effectiveness from the agreement of the
parties as set out in the arbitration agreement, it arbitration has a
jurisdictional nature involving the application of the rules of
procedure."title="">
"Arial Unicode MS";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[23] Another
concept is the autonomous theory of arbitration insists that arbitration should
be viewed in a broad context: rather than emphasizing the structure of the
institution, emphasis should be placed on its goals and objectives. A complete
picture of arbitration can only be presented by considering its use and
purpose, and the way in which it responds to the needs of the business
community.title="">
"Arial Unicode MS";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[24]
theories of arbitration discussed above shed light on the various and often
contradictory demands that influence the arbitration progression. A contractual
theorist would necessarily advocate unhindered party autonomy, whereas a
jurisdictionalist would argue for substantial judicial supervision of
arbitration. An adherent of the mixed or hybrid theory is likely to favour an effective
mixture of autonomy and regulation, whereas an autonomist would focus on what
is necessary to ensure that arbitration meets the needs and objectives of the
parties.
end, each legal system must struggle to reconcile these conflicting interests.
As argued above, no one approach is entirely satisfactory. Each represents a
way of looking at arbitration. A fuller and richer view must, of course,
contemplate its object from all possible perspectives. In this regard, the law
should reflect a blend of the above theories so as to ensure that arbitration
meets the larger needs of society. The mixed or hybrid theory meets this
objective by focusing on both the contractual and the jurisdictional basis of
arbitration. This theory cautions us always to remember that international
arbitrations cannot be entirely divorced from the legal systems with which they
come into contact. For as Robert and Carbonneau prompts, "the validity of
arbitral adjudication is directly dependent upon the recognition by the legal system
that the arbitral process responds to the felt needs of society."
that the process of arbitration at some point draws assistance from national
legal systems suggests that the latter could demand and ensure that the
arbitration process meets minimum standards of fairness and justice. One way of
ensuring this is by imposing on arbitrators a positive duty to maintain due
process in the conduct of arbitrations, a duty that is indirectly enforced by
national courts refusing to enforce awards made by arbitrators who do not
follow due process in the conduct of arbitration.
It is therefore misleading to suggest that parties to arbitration have
exclusive right to assign the powers and duties of arbitrators.
the point should be made that, unlike litigators before a national court who
have very little control over the judge's powers and duties, parties to an
arbitration, together with the relevant national legal systems, regulate the
powers and duties of arbitrators. Moreover, arbitration is also characterized
by the fact that the parties themselves appoint the arbitrator. The parties may
delegate this responsibility to an arbitration institution.
and mandate them to appoint other arbitrators. The parties to arbitration also
determine the procedure to be followed in the conduct of the arbitration. They
may do this by enumerating detailed procedural rules as part of their
arbitration agreement or by adopting the in-house rules of an established arbitration
institution, such as the International Chamber of Commerce. It is disputed to
what extent they can exclude certain procedural rules of the place of
arbitration, especially those that are considered mandatory.
important feature of arbitration is that awards made by arbitrators, in
contrast to the decision or recommendations of conciliators and mediators, are
binding on the parties. Arbitrators perform the "judicial function"
of settling the parties' dispute based on their determination of the rights and
obligations of the parties. Under narrowly defined situations, international
arbitral awards could be appealed against in appropriate courts. In handling
international arbitrary disputes, the United Nations Commission on
International Trade Law (UNCITRAL) is among the major players in formulating a
universal model law that, if enacted by member countries of the United Nations,
would modernize and harmonize the law relating to international commercial
arbitration. UNCITRAL is the "core legal body within the United Nations
system in the field of international law, with a mandate to coordinate legal
activities in this field in order to avoid duplication of effort and to promote
efficiency, consistency and coherence in the unification and harmonization of
international trade law." (UNGA Res. 40/71)
Advantages
of Traditional Commercial Arbitration
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>In
the international arena, the advantage of arbitration over litigation as a
method of dispute resolution is no longer subject to debate. One reason for this
trend is that private international arbitration agreements allow parties to
draft provisions suited to their particular needs in anticipation of future
disputes.title="">
"Arial Unicode MS";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[29] Indeed,
arbitration agreements are in essence a type of forum selection agreement that
attempts to avoid many of the problems related to jurisdiction.
Such problems range from whether a court has jurisdiction over the defendant
attempting to enforce a judgment in the other party's country, where the tribunal
may be more inclined to favour its own nationals.
In other words, international businesses have a strong incentive to avoid the
local bias that may be faced when arguing a dispute in the courts of other
countries.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Arbitration
also provides flexibility, speed, and financial savings in international
disputes, whereas litigation can be slow and costly.
Arbitration also foregoes the need for a judge and the accompanying formal
proceedings. Instead, the parties agree on an impartial third person to act as
arbitrator.title="">
"Arial Unicode MS";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[34]
Typically the arbitrator is more informed than judges or juries about the
subject of the dispute and the customs of the industry and can preside over the
proceedings without formal procedural requirements, such as rules of evidence,
which often create an overly adversarial environment.
Thus, the increasing use of international arbitration, when conducted under the
auspices of an arbitral institution,href="#_ftn36" name="_ftnref36" title="">
shows that "privatised rulemaking" can, at least in the area of
comparative law, serve as a practical tool to the international commercial
community.title="">
"Arial Unicode MS";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[37]
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>The
primary incentive for international arbitration is its uniformity, economy, and
speed. The advantages of being able to control the proceedings in international
arbitration by being able to, for example, contribute to the choice of an
arbitrator(s) without worrying about the sympathies of that person clearly make
arbitration preferable over having to litigate in a foreign state. These
advantages, however, require the assistance of two countervailing forces.
First, to achieve efficiency and economy, international arbitration must avoid
systems of control that would come to resemble domestic courts, with their
backed-up dockets and their protracted proceedings. Second, without a mechanism
to insure uniformity, to avoid to pitfalls of localization of rulings, a system
is required to insure not only appeals, but to ultimately gain the trust of the
international commercial community.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Gaining
an award is not the final step in the arbitral process. The assistance of
national courts is needed for enforcement of arbitral awards. Without their
assistance in either enforcing an award against a party or offering their
protection against the potential compromise of rights and abuse, the arbitral
process would present far less assurance to the international commercial
community. The two recent cases discussed in this Comment illustrate these
points, while also pointing out some of the potential problems with the present
judicial interpretation of the Convention.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Another
advantage of traditional arbitration is the ability to choose a forum in a
"neutral" third country. Worldwide commerce involves specific
demarcation of other countries and while there is a great interest in
increasing such trade the individuals involved are wary of getting involved in
legal battles in their counterparts countries. The preference to circumvent
legal actions in a different country need not have to stern from the idea that
the said courts are inadequate. There is a feeling of being disadvantaged when
having to deal with foreign customs (legal or other), foreign location and
maybe even a foreign language. The feeling of hindrance is elevated by the
reality that the adversary is completely competent in these environments. Thus
arbitration in a third non-aligned nation may have in an increased sentiment of
even-handedness. The advantages of a virtual tribunal are that all the parties
are located on home ground. The disadvantages, which may occur from ones
opponents' technical skill, can be avoided by bringing in local experts.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Similarly,
arbitration also provides procedural swiftness. Notionally placing an
arbitration stipulation denotes that all disagreement curtailing from that bond
are resolved in arbitration as a replacement for civil courts. This implies
that the tangible proceedings come to pass at a period established upon by the
parties and the subject is settled without delay and smoothly.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Another
great advantage of arbitration is party autonomy. Since the factions have
liberally selected to eliminate the civil court proceedings from the management
of their agreement they are also unbound to choose which laws or principles
should be the guiding principle for the arbitrator when mulling over the
disagreement. Arbitration permits the factions to decide which countries’
principles they want to utilize in the dispute. It can go so far as to divide
substantive laws from technical laws by deciding them from different countries.
This is perceptibly unfeasible in civil courts where the law utilized is the
local court's treatment of private international law. It is this great autonomy
of choice that will consent arbitration to assume the steps compulsory to enter
the virtual arena.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Since
arbitration is such an adaptable technique of dispute resolution the
contracting factions frequently make an effort to keep a tight rein on future
confusion by referring to the system and measures of an arbitration institute.
By doing so they concur to adhere to the regulations for arbitral proceedings
of that institute. The arbitrator has the independence to reduce to bare bones
or set hurdles on the process at the appeal of the factions but it is not
constantly in the concern of both parties to shorten the proceedings.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>In
addition, the advantages of arbitration are often said to be found in its cost
efficiency. The tribunal is seen as a complementary to the costly courts.
Nevertheless, this might be a mistaken belief. The use of courtrooms do not
equal to any amount of money, it is more of the expenses for retaining lawyers
to claim a case in the varied courts in anticipation of the moment that the
case arrive at the highest court and the case cannot be appealed any further,
or one side gives up. The image of a disagreement being hauled through the
courts over a interlude of countless years is sufficient to make most
capitalist give further details about the merits of arbitration. The actual
process is the most certain source of costs in arbitration. Under this are the
arbitrators' expenses and the fee to the institute,
lawyers' expenses and travel and living expenses. However, the merit of
the process is that the decision of the tribunal are final and cannot be
appealed to thus the process becomes brief which in turn minimize the total
costs.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Similarly,
another advantage is the prevention of public access of proceeding records
since it is not done in court. Nevertheless, this is dependent on the
prerogative of the parties in their respective silence. Moreover, added
sentence can be charged on the faction infringing the silence though it may be
difficult to prove. The predicament opposite online arbitration is the concept
of confidence. The factions must be able to depend on the security of the
system of communication. The lack of probability for any unofficial individual
to acquire admission to the information dispatched to the arbitration
institution. The fortification of communication lines of both parties as well
as the information inventory is of principal significance to the warring
factions as well as the repute of the arbitration institute.
courtrooms can be an effective tool along with its formal procedures and
publicity, there is the possibility that it might not be the acceptable option
if it is the intention of both parties to maintain a good status of relations
in order not to damage the flow of business after the dispute. A considerably
assertive legal action may convert a future business relationship unpleasant.
The possibility of public degradation might coerce the loosing faction to
strike back or at least even the score. The application of arbitration has a
reduced amount of belligerence in its nature. The atmosphere and procedure in
which this is executed augments the idea of peaceful dispute resolution.
Disadvantages of Traditional Commercial Arbitration
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Aside
from the advantages of traditional commercial arbitration, there also exists
the downside of it. The arbitration clause is signed from the moment that the
two opposing parties decide to trade with each other. Regrettably, once the
parties start to disagree, they tend to argue on all possible points. Moreover,
arbitration hearings are not always carried out in the quick and effective
manner in which they were intended. Delaying tactics might be taken as a tool; or
otherwise one of the parties might have been intimidated into participating in
the arbitration. These are aspects that by now have an effect on arbitration in
the present day. While technology could alter the parties' thoughts towards
rewarding their contractual commitment to arbitrate it could expedite the
interaction between the parties and the tribunal.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Moreover,
the effectiveness of private international arbitration is dependent "on
substantial and predictable governmental and intergovernmental support."
This reality leads to the irrefutable logic that in the absence of
"reciprocal commitments and effective control," there is little
reason to believe that one country's courts would allow its citizens' property
to be confiscated simply because a private actor has ruled so. Taking this
logic a step forward, without the assurance of enforcement by a national court,
in whose territory an award debtor's property is located, international
commercial arbitration simply will not work.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>But
it has worked.title="">
"Arial Unicode MS";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[39] Unlike
criminal law, where ideological and other differences between nations have
prevented the forming of a unified rule of international law,
in private, commercial matters, nations have been willing and able to reach
some consensus.title="">
"Arial Unicode MS";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[41] Without
such a consensus, the explosive expansion of international commerce and the
recognition of the global economy would be in doubt.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>The
decision of an arbitrator, however, does not necessarily result in the
resolution of a dispute. Parties to an arbitral proceeding will often resort to
domestic proceedings in local courts to enforce either the agreement to
arbitrate or the award decision reached by the arbitrator.
With the assigned roles of an arbitral tribunal and domestic courts, it is
inevitable that contradictory rulings may occasionally occur. This
inconsistency can be particularly problematic when a domestic court and an
arbitral tribunal disagree in implementation of enforcement provisions of the
United Nations Convention on the Recognition and Enforcement of Foreign
`Arbitral Awards, also known as the "New York Arbitration Convention of
1958" (Convention).
Definition of Online Arbitration
time and age, transactions often take place through the World Wide Web.
Commercial transactions conducted on this medium are labelled as e-commerce.
Nevertheless, with the purpose for e-commerce to persist to flourish, legal
confidence should subsist such that commercial transactions completed online
will be put in force in the physical world. A dependable and enforceable
dispute resolution mechanism customized exclusively to the needs of the e-
commerce milieu would assist in the progress of such officially authorized
certainty. Proposed solutions on online dispute include online alternative
dispute resolution (ADR) intuitions that assimilate either a mediation or
arbitration model, or some sort of combination of the two.
idea of taking legal action in a foreign jurisdiction under foreign rules is
taken rather anxiously by all businesses engaged in international transactions,
including those now partaking in online ventures. The best solution
historically for the resolution of international commercial disagreements has
been conventional ADR services. ADR is normally speedy, efficient and
confidential. Nevertheless, it is inappropriate for settling online
commercial disputes, predominantly for the reason that legal revolution have
insulated in the wake of the changes in the social, technological, and
commercial mores of cyberspace. Moreover, creative entrepreneurs and academics
have thus devised dispute resolution programs on the web.
aptitude to play a part in an online proceeding of this category generates a
freer market for dispute resolution, a market unfettered by anxiety of locality
or time.
accessibility of online arbitration services enables parties at any place and
at any time to commence or take action to a petition by accessing a website and
finishing electronic forms that steer them through the numerous stages of the
course of action. Moreover, the individual parties are able to become
accustomed to the process particularly to their precise needs and utilize
multimedia technology to conserve time and money.
This sleek and collectively obtainable process diminishes entry impediments to
arbitration for businesses and individual parties, providing a new means of
access to justice.
Why
Do We Need Online Arbitration ?
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>In
the World Wide Web, resolution of disputes are opposite of a number of
essential disturbing troubles. Initially, the individual factions on the web
more often wouldn’t have seen each other in the physical world considering they
live actually in different nations or continents. In the real world, common
consumers do habitually not go into an international agreement. On the other
hand, in the Internet, they would have taken advantage of small transactions,
which is unusually for them considering they would have second thoughts in
acquiring assets in the physical world.href="#_ftn47" name="_ftnref47" title="">
As stated earlier in this chapter, courts normally are slow and expensive.
Furthermore, courts are considered as a financially irrational channel to
resolve disagreement arising from the World Wide Web. The factions to such
small or medium-sized disagreements in the web will time and again have
hardwearing economic enticement not to pursue court proceedings, leaving the
fraudulent party with a victory.name="_ftnref48" title="">
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Additionally,
online arbitration could provide this effectiveness, because the alternative to
legal actions in courts is barely negligible and therefore much less costly.
difficulties follow from this form of legal effectiveness. Online arbitration
compels the factions to give up some of their liberties, which does not
stimulate faith and which is the motive why arbitration at present still deal
with a sequence of legal hindrances. In terms of the claims of the consumer,
there is for instance a predicament of arbitrability beneath a quantity of
regulations.title="">
"Arial Unicode MS";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[50]
legal hindrances are simply errors in the legal system these obstacles are
still there.
Advantages of Online Arbitration
The international market offered by
e-commerce creates peril that may be taken in hand by incorporating arbitration
clauses in online contracts. Introducing numerous customers one click far from
carrying out a business deal that generates the risk of thousands of consumers
putting on record lawsuits in their domestic locations or a fusion in a class
action lawsuit.title="">
"Arial Unicode MS";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[51]
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>The
process of arbitration occurs when a third party is chosen by the parties
involved, or proposed by the institution selected by the factions, provides a
decision on a case while applying fundamental procedural principles.
Conventionally, similar to traditional arbitration, its online counterpart
resolves a dispute by making a practical decision.
of arbitration. It is a procedure where judgments are enforceable by the powers
that be. The philosophy of binding arbitration online is that it comprises a
mode of private judging, a substitute for court litigation.
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Thus,
in the milieu commerce in the World Wide Web, arbitration's supplementary
remuneration of guaranteeing an adjacent medium for resolution of the dispute
and eliminating the presence of class action lawsuit stand up to added
importance.title="">
"Arial Unicode MS";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[53] Online
arrangements may take an account of an arbitration stipulation with a forum
assortment clause and a preference of law clausse.
features and attributes of international commercial arbitration. It also
provides some theories of arbitration. This chapter finds that compared to
litigation, the traditional commercial arbitration is effective because of it
flexibility, speed, and financial savings in
international disputes. Moreover, the advantages include control of the proceedings
in international arbitration by being able to contribute to the choice of an
arbitrator without worrying about the sympathies of that person. Another
advantage is the prevention of public access of proceeding records. The review
also presents shortcomings of traditional arbitration, including its dependency
on predictable governmental and intergovernmental support. Finally, this
chapter differentiates arbitration in physical and online worlds. The major
difference is that online arbitration is far less costly.
Chapter 3:
EN-GB'>
Recent Development
in the Domain Name Disputes
This
chapter shall discuss the findings of recent developments in the domain name
disputes. It shall provide a discussion on the significance of this study to
the existing literature. The contents of this portion of the study is gathered
and collated from its secondary data.
What is the domain name?
addresses of the Internet. E-mail is sent and web pages are found through the
use of domain names. As an example, the web address for the Microsoft web site
is www.microsoft.com, while Bill Gates might have an e-mail address such as
bill@microsoft.com (both using the "microsoft.com" domain name).
Without the domain name, a computer would have no idea where to look for a web
page, and e-mail routers would not be able to send e-mail. Of course, domain
names are more than just addresses, since they can be selected by the
"addressee" and are usually closely associated with a particular
service or product.
between trademark law and the domain name system. In the
trademark law, two or more users of a mark may legally coexist,
but in cyberspace multiple users cannot lay claim to a single domain name. To
cite a frequently noted example, although United Airlines and United Van Lines
both have valid trademark rights in "United" for their respective
goods and services, only one party can register united.com. Furthermore,
because the costs of complete investigation are prohibitively high, some domain
name registries award domain names to the first claimant regardless of whether
the name contains another's trademark, or even whether the registrant has any
rights in the word or phrase at all. As such, an individual or company with the
foresight to beat a trademark holder to the punch often is able to register a
domain name containing any trademark or variation thereof.
first-served registration scheme, a party with no rights in a trademark
belonging to another sometimes uses it as a domain name to sell competing
products or services. Such conduct clearly causes consumer confusion and falls
squarely within the prohibitions of infringement law.
Cases of this type thus far have been easily addressed under traditional Lanham
Act analysis by the United States courts,href="#_ftn57" name="_ftnref57" title="">
and presumably would be resolved similarly in other nations adhering to the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),
which requires its members to provide an exclusive right for registered
trademark owners against unauthorized third-party use "where such use
would result in a likelihood of confusion."
and use give rise to a host of other legal controversies, many of which do not
fit so neatly into traditional trademark analysis. The spectrum of domain name
disputes covers conduct ranging from conflicts between multiple holders of
identical marks;title="">
"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[59]
"pure speculation," the registration of untrademarked popular words
as domain names to resell them for profit;href="#_ftn60" name="_ftnref60" title="">
and "cybersquatting," the practice of registering domain names that
contain trademarks owned by other parties in order to extract a ransom.
style='font-family:"Times New Roman";mso-ansi-language:EN'>
Internet. It is a distributed database that handles the mapping between host
names (domain names),
which are more convenient for humans, and the numerical Internet addresses. For
example, www.microsoft.com is a domain name and 130.94.122.199
the corresponding numerical internet address. The domain name system acts much
like an automated phone book, so you can "call" www.microsoft.com
instead of 130.94.122.199. So, it converts Internet IP addresses like
130.94.122.199 into names like "www.microsoft.com".
disputes
virtues of an organized legal system.href="#_ftn61" name="_ftnref61" title="">
As the
Supreme Court Justice Benjamin Cardozo once noted, "law as a guide to
conduct is reduced to the level of mere futility if it is unknown and
unknowable." name="_ftnref62" title="">
the absence of clear and consistent standards of conduct, individuals act in an
economically inefficient manner because they rely on uncertain standards or, in
the alternative, may fail to act at all in the absence of clear guidance. Like
a government-administered legal system, the Uniform Domain-Name
Dispute-Resolution Policy (UDRP) attempts to further consistency through its
uniform system of dispute resolution. However, the policy has succeeded only
partially at promoting consistent decisions, leaving gaps of incongruity on key
issues of domain name registration and use.href="#_ftn63" name="_ftnref63" title="">
problem not only for those whose conduct it governs, but also for the Internet
Corporation for Assigned Names and Numbers (ICANN), the organization that
promulgated the UDRP. ICANN has been the target of a variety of legitimacy
critiques since its inception,name="_ftnref64" title="">
and the lack of consistency in the application of the UDRP supports these
critiques by putting its integrity into question. To preserve its role in the
governance of the Internet, ICANN will need to formulate future policies
mindful of these attacks on its legitimacy. ICANN therefore should address the
problem of inconsistent decisions under UDRP--arguably ICANN's best-known
policy--not only to improve the dispute resolution system, but also to enhance
its own integrity.
One
example of an issue on which UDRP arbitration panels have rendered inconsistent
decisions is domain name speculation. The UDRP specifically limits its scope to
"bad faith" registration and use, thus appearing to provide a remedy
for essentially the same conduct covered by the ACPA, namely traditional cyber
squatting. As discussed above, pure speculation is distinguishable from cyber squatting
in that it includes situations where no specific trademark owner is targeted.
The registrant of business.com, discussed earlier,
is an example of a pure speculator.
explicitly drawn this cyber squatting/pure speculation distinction, they appear
to have drawn it implicitly, by holding that pure speculation is not in bad
faith, as long as the registrant has no actual or constructive knowledge that
the registered term is also a trademark.href="#_ftn67" name="_ftnref67" title="">
For example, in General Machine Products
concluded that registration of craftworks.com did not violate the UDRP even
though the registrant was in the business of registering generic domains for sale.
fact that Prime Domains had never registered any other distinctive common law
or registered trademarks, and did not solicit General Machines to purchase the
name.
taken the same stance on pure speculation. One illustrative case is
In eResolution, the panel transferred the domain name in question to the
complainant even though the domain name was registered before the complainant
commenced business under the name "eResolution" or filed an
intent-to-use application for trademark registration.
In other words, not only was the registrant unaware that the domain name
contained another's trademark, but notice, constructive or otherwise, would have
been impossible because no trademark existed at the time of registration. This
decision is in direct conflict with the General Machines outcome and seems to
be an improper application of the UDRP. It is a stretch, to say the least, to
impute constructive knowledge of a trademark to a registrant to find bad faith
where the mark did not exist at the time of registration.
concerning domain names ending in the word "sucks" provide another
example of inconsistency. Although the UDRP does not use the term "fair
use," The fair use defense recognizes that the property interest in a
trademark is not absolute. Rather, a trademark holder has a property right
"only insofar as is necessary to prevent consumer confusion as to who
produced the goods and to facilitate differentiation between ... goods."
These principles are, of course, relevant in the domain name context. In
apparent recognition of them, the UDRP provides that "legitimate
noncommercial or fair use of the domain name, without intent for commercial
gain," will demonstrate a legitimate interest in the domain name that will
thwart the complainant's attempt to force transfer of the name.
to variants of the registered trademark "Wal-Mart" are illustrative.
In the first decision, Wal-Mart Stores v.
Walsucks, a WIPO panel transferred several domain names, including
wal-martcanadasucks.com and walmartpuertoricosucks.com, to the complainant. The
decision was based on the panel's conclusion that the registrations were
confusingly similar to the "Wal-Mart" mark and were registered with
the bad faith intent of eliciting a ransom from the trademark owner. The panel
left open the possibility that other uses of "sucks," coupled with a
trademark, could be allowed as "legitimate freedom of expression sites
established by parties critical of trademark holders." Nonetheless, the
decision is puzzling in that it found confusing similarity, despite the extreme
unlikelihood that a reasonable consumer would conclude that Wal-Mart is
directly affiliated with a website disparaging Wal-Mart.
Stores v. wallmartcanadasucks, a second WIPO panel explicitly disagreed
with the previous decision, stating that it could "not see how a domain
name including `sucks' can ever be confusingly similar to a trademark."
Although this finding alone would have been grounds for denial of transfer, the
panel went on to suggest that a "sucks" domain name may qualify as a
legitimate vehicle of free expression under the First Amendment to the United
States Constitution, and thus fail to qualify as a bad faith use even where, as
here, there was very little actual critical content posted on the site.
Although, with respect to confusion, this decision seems more properly grounded
in the UDRP than the previous Wal-Mart decision, it too is troubling in its
explicit reliance on the First Amendment because neither the arbitrators nor
the registrant (here, a Canadian) is either constrained or protected by the United
States Constitution.
well as the General Machines and eResolution decisions, illustrate that
confusion over critical issues of domain name use has led to inconsistent
application of the UDRP. Such inconsistency is a serious problem, as it impedes
individual decision making and undermines the integrity of both ICANN and the
UDRP. As such, resolving the problem of conflicting decisions should be a top
priority for ICANN.
The
UDRP itself is to blame for much of the inconsistency problem. The policy lends
itself to confusion and misapplication because it lacks specificity, a flaw
magnified by the fact that precedent plays little role in UDRP decision making.
Moreover, the lack of specificity in the policy may facilitate biased decision
making (or the appearance thereof).
in an arbitration, a complainant must assert and prove that the domain name is
confusingly similar to a mark in which the complainant has rights, that the
registrant has no rights or legitimate interest therein, and that the
registration and use of the domain name have been conducted in bad faith. The
policy also lists factors that demonstrate bad faith, as well as defenses by
which a registrant can show that it has a legitimate interest in a domain name.
However, these lists are brief and, by their terms, nonexclusive, and thus
provide inadequate guidance for arbitrators faced with issues not specifically
addressed, such as speculation in domain names and fair-use type situations.
Moreover, the rules by which arbitrations are conducted encourage broad
discretion from panel to panel. The policy provides that "The Panel shall
conduct the administrative proceeding in such manner as it considers
appropriate in accordance with the Policy," and allows individual
arbitrators to exercise their own judgment as to the admissibility of evidence
submitted.
concern that arbitrators are openly biased toward corporate interests and
trademark holders, and that the UDRP, therefore, "`give[s] trademark
holders broader rights in cyberspace than they have in the real
world.'" This concern, if
substantiated, would highlight a flaw in the current system and provide a
further explanation for the contradictory decisions discussed in the preceding
section. Certainly a number of decisions, including eResolution and Walsucks,
seem to stretch the policy in favor of corporate trademark holders.
name
of the Internet, companies have realized that having a domain name that is the
same as their company name or the name of one of their products can be an
extremely valuable part of establishing an Internet presence. A company wishing
to acquire a domain name must file an application with the appropriate agency.
Before doing so, a search is done to see if their desired domain name is
already taken. A good site for doing such a search is provided by Network
Solutions. When a company finds that the domain name corresponding to their
corporate name or product trademark is owned by someone else, the company can
either choose a different name or fight to get the domain name back from its
current owners.
Some
well publicized examples of these types of domain names disputes are:
Symbol;mso-fareast-font-family:Symbol;mso-bidi-font-family:Symbol'>
candyland.com
provider desired the candyland.com domain name. Hasbro was too late to register
the name itself, but it is never too late to sue (well, almost never). The
domain name is now safely in the hands of Hasbro.
- mcdonalds.com: This domain name was taken by an author
from Wired magazine who was writing a story on the value of domain names.
In his article, the author requested that people contact him at
ronald@mcdonalds.com with suggestions of what to do with the domain name.
In exchange for returning the domain name to McDonalds, the author
convinced the company to make a charitable contribution. - micros0ft.com: The company Zero Micro Software obtained
a registration for micros0ft.com (with a zero in place of the second 'o'),
but the registration was suspended after Microsoft filed a protest. When
the domain name went abandoned for non-payment of fees, the domain name
was picked up by someone else: Vision Enterprises of Roanoke, TX - mtv.com: The MTV domain name was originally taken by MTV
video jockey Adam Curry. Although MTV originally showed little interest in
the domain name or the Internet, when Adam Curry left MTV the company
wanted to control the domain name. After a federal court action was
brought, the dispute settled out of court. - peta.org: An organization entitled "People Eating
Tasty Animals" obtained the peta.org domain name, much to the disgust
of the better know People for the Ethical Treatment of Animals. This
domain name was suspended, but as of May 2000 the domain name was still
registered in the name of People Eating Tasty Animals. - roadrunner.com: When NSI threatened to suspend the
roadrunner.com domain name after a protest by Warner Brothers, the New
Mexico Internet access provider who was using the domain name filed suit
to prevent the suspension. Although the access provider was able to
prevent the suspension, a joint venture company involving Time Warner,
MediaOne, Microsoft, Compaq, and Advance/New house eventually obtained the
domain name. - taiwan.com: The mainland
was allowed to register the domain name taiwan.com, much to the disgust of
the government of
world's most popular domain name dispute resolution system by virtue of its low
cost and relative ease, in the cyberlaw world. However, it is shown that UDRP
is not consistent with its decisions, creating confusion, thwarting reliance
interests, and giving rise to concerns that the arbitrators are biased. Another
problem is the inability of ICANN to address directly the limited applicability
of the UDRP. On the brighter side, these problems are not insurmountable. The
problem of inconsistency, as well as the related bias concerns, can be
addressed by amending the policy to provide clarity and to ensure that fair
uses are recognized. Moreover, ICANN can remedy the problem of limited
applicability by regaining power and influence over global domain name dispute
resolution. Through these actions, ICANN can craft the UDRP into a fair,
efficient, and consistent international dispute resolution mechanism.
arbitration is a process where a third party chosen by the parties, or
nominated by the institution chosen by the parties, renders a decision on a
case while applying fundamental procedural principles. Traditionally – in the
offline world – arbitration resolves a dispute by making an enforceable
decisiontitle="">
"Times New Roman";mso-ansi-language:EN-GB;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[72]. This
is the binding form of arbitration – a process whose decisions, by law
operation, are enforceable by the authorities of the state. The ideology of
traditional binding arbitration is that it constitutes a form of private
judging, a substitute for court litigationhref="#_ftn73" name="_ftnref73" title="">
there also is a non-binding form of arbitration. In this context, this means
that the decision is not enforceable by state authorities on its own. A
decision like that may become binding afterwards, when made part of a consent
award or a settlement agreement. The ideology of non-binding arbitration is
that it constitutes negotiation assistance – a form of mock trial
dispute resolution has come in the fore in the last few years, due to the
extensive use of the internet. The characteristics of the Cyberspace have made
insufficient the traditional dispute resolution through judicial procedures and
administrative-agency because of the controversies that come up in political
interaction and commerce that are internet-based.
Technological revolution, specifically the emergence of Internet
activities, continues to grow and has been beyond what anyone could have
imagined. The Internet as a communication medium and market space is growing at
an unprecedented rate, following Berners-Lee's development of the WWW in 1989
which was a key to opening up the Internet as a global and easily accessible
information space. As a result, e-commerce has become one of the fastest
growing sectors of industry and shows no sign of slowing. Moreover the
commercial domain is by far the largest and fastest growing on the WWW. To meet
increasing demands, industries are turning themselves toward the Internet to
further boost their businesses. Likewise, politicians have been aggressive in
seeing the value of this new medium, thus promoting its use as a way to
increase regional, national and international trade. It is not difficult to
imagine that the users will require dispute resolution to be as convenient as
online shopping.
naturally worldwide, as selling goods on a Web page on a server actually to be
found in
is able to be seen to customers in
and political arenas it is easier said than done to restrict the damage itself
or the damage-generating operations. To agree on jurisdiction, the traditional
dispute resolution system depends on localisation, while hesitation and debates
over jurisdictional claims are generated by obstacles to localisation. This
subjects all the internet users to jurisdiction by any one of the officially
recognised states in the world. It also results to the possible annoyance of
communities who dislike being unable to reach a conduct that takes place in a
distant country, through their legal system.
entities that do not have the funds to participate directly in traditional
markets and political arenas are encouraged to participate in politics and
commerce by internet’s low financial barriers of entrance. This also indicates
a better frequency of small transactions. The value of the original transaction
is threatened to be swamped by the costs of the dispute resolution, if – and
this is the case for the traditional arbitration procedures – these are high.
On the one hand, this discourages the victims from seeking justification of
their rights and, on the other hand, it brings the suspected offenders to the
position to face court case expenses that may overcome the profit that they
make offering electronically their goods and services. The reduction of dispute
resolution costs is a necessity, in order for individuals and small entities to
participate.
these challenges are successfully confronted by alternative dispute resolution,
including a wider choice of alternatives (such as escrow arrangements for
example), and not only arbitration and mediation. The first way is that
alternative dispute resolution can be planned to be significantly less
expensive than traditional operations. Also, when the participants that agree in
the alternative dispute resolution procedure are in different states, then the
ADR is naturally international.
dispute resolution methods that are properly designed solve the issue of
jurisdiction, put forward lower costs, and restore participants’ confidence,
for the reason that their use demonstrates approval. A willingly offered fund
is engaged by several types of alternative dispute resolution – generally the
disputed transaction’s fee – as a way to satisfy a result for both disputants.
The ease of use of a fund is frequently taken too lightly as a decisive factor.
This factor may explain why intermediary provided dispute resolution methods –
like e.g. escrow arrangements – turn out to be more attracting in reality than
self-regulating third party systems. Additionally, to an arbitration process,
the winning party must be still worried for the implementation of an
arbitration award against the party that has lost.
argument that individuals or organizations involved in Cyberspace disputes
readily accept new types of dispute resolution is not supported empirically. To
a certain extent, the rising utilization of alternative dispute resolution is
more or less at all times associated with its explicit association to one of
the disputing parties, as by the takeover of ADR procedures to recognized court
systems as for example in the case of court annexed arbitration
of the most valuable commodities. As regards to domain name problems, the UDNDR
policy constitutes a valuable asset to the Internet community, because it
provides quick and economical solutions to many domain name disputes. However,
the policy has some limitations, and in order to maintain a strong foundation,
arbitrators should not expand its reach into areas best left to courts of law.
Experience tells that unrestrained arbitration decisions based on good
intentions have corrupted the policy.
But the fact that it is new and relatively untested makes the importance of
clear contracts and arbitration rules especially important. The technology
involved in the process is as we have seen already widespread. The legal
problems to be resolved are identifiable. There can be only two sides to this
issue and they are to continue ignoring the problems or two bring the legal
solutions up to speed with the technological realities.
limitations hold back the exercise and development of online alternative
dispute resolution would be too simplistic, as even uncomplicated disputes that
do not require extensive fact investigation or oral testimonies, have not
reached online alternative dispute resolution systems. The dispute resolution
society must work harder towards the recommendation and the connection of the
various approaches in order to build up an improved body of knowledge and
practice with uncomplicated applications, before the investment of more funds
for the development of more complex technological applications for online
dispute resolution. When this body of knowledge and practise becomes a reality,
it will be likely to make more sound judgements about the necessary
technological developments.
include a summary of the whole dissertation, as this is not completed. Upon
completion of the dissertation a brief synopsis and concluding arguments will
be added)
EN-GB'>APPENDIX
EN-GB'>
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Table
of Cases
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>eResolution
v. eResolution.com [2000] D2000-0110
v. Prime Domains
[2000] FA92531
TheBigstore.com [2000]
0003000094322
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Wal-Mart
Stores v. Walsucks [2000] D2000-0477
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>Table
of Statutes
Agreement on Trade-Related Aspects of Intellectual
Property Rights
Lanham Act
UNCITRAL Model Law on International
Commercial Arbitration (1985)
U. S. Trademark Law
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>
style='mso-fareast-font-family:"Arial Unicode MS";mso-ansi-language:EN-GB'>
EN-GB'>
EN-GB'>
EN-GB'>
EN-GB'>
EN-GB'>
EN-GB'>
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supra. (
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mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[47]
mso-ansi-language:EN-GB'>supra. Lalive, 1999
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supra. Katsh,
Rifkin, and Gaitenby, 2000
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supra. Lalive, 1999
name="_ftn52" title="">
supra. Varenvald, 2000
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supra. Katsh, 2000
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"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[54] Mark
Radcliffe, Trading on Your Brand Name, LEGAL TIMES,
name="_ftn55" title="">
"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[55] Joshua
Quittner, What's in a Name? Some Net Addresses Are as Precious as Madison
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mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[56]
Ibid.
name="_ftn57" title="">
mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[57]
Ibid.
name="_ftn58" title="">
mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[58]
Ibid.
name="_ftn59" title="">
mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[59]
Krisna V. 2001
N. CARDOZO, THE GROWTH OF THE LAW 3 (1924).
Cardoza 1924
Boyle, A Nondelegation Doctrine for the Digital Age?, 50 DUKE L.J. 5, 14 (2000)
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Ibid.
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"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[67] Kompan
Inc., v. TheBigstore.Com, FA0003000094322 (Nat'l Arb. Forum
Law Journal) (refusing to transfer bigtoys.org); Dog.com, Inc. v. Pets.com,
Inc., FA0093681 (Nat'l Arb. Forum
name="_ftn68" title="">
"Times New Roman";mso-bidi-font-family:"Times New Roman";mso-ansi-language:
EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA'>[69]
"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:EN-US;
mso-bidi-language:AR-SA'>[70] No.
D2000-0110 (WIPO
2000
(on file with the Duke law Journal). The eResolution
complainant, interestingly, was one of ICANN's four approved dispute resolution
providers.
name="_ftn71" title="">
2000
name="_ftn72" title="">
mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[72]
and Practice of International Commercial Arbitration,
name="_ftn73" title="">
mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[73]
Arbitration Convention of 1958: towards a uniform judicial interpretation,
Taxation, p. 44.
name="_ftn74" title="">
mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[74]
Arbitration Act”, 8 American Revue of International Arbitration,
225 (1997), p. 242.
name="_ftn75" title="">
mso-bidi-font-family:"Times New Roman";mso-ansi-language:EN-US;mso-fareast-language:
EN-US;mso-bidi-language:AR-SA'>[75]
in Cyberspace: Demand for new forms of ADR’, in:
p. 17.
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