Chapter 1
INTRODUCTION
Arbitration is a legal alternative to the courts 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.
Since arbitration is based either 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.
Arbitration exists under both 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 International Center United States
Moreover, when arbitration occurs 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.
Some domestic jurisdictions have 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.
Arbitrators are not bound by 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.
No definitive statement can be made 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.
A growing trend among employers 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.
To ensure effective arbitration and 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. [1] 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.[2] 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.'' [3]
Background of the Study
In 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. [4] 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.
As 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.[5] The 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.[6] This sleek and collectively obtainable process diminishes entry impediments to arbitration for businesses and individual parties, providing a new means of access to justice.
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. [7] 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.[8]
Additionally, online arbitration could provide this effectiveness, because the alternative to legal actions in courts is barely negligible and therefore much less costly.[9] 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. [10]Though 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.[11]
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.[12] 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.[13] Online arrangements may take account of an arbitration stipulation with a forum assortment clause and a preference of law clause.
Statement of the Problem
The researcher finds the 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:
1. What is arbitration?
2. What are the related factors in traditional and online arbitration?
3. What are the advantages and disadvantages of traditional arbitration?
4. What are the advantages and disadvantages of online arbitration?
5. What are the related current issues in arbitrations?
6. How can we improve the online arbitration?
Hypothesis of the Study
This paper will work on the following hypothesis:
o There is a significant difference between online arbitration and traditional arbitration in terms of their performance.
o There is a significant difference between online arbitration and traditional arbitration in terms of their advantages and disadvantages.
Significance of the Study
This study will be a significant 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. 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
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.[14] 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.[15] 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.'' [16]
Based on 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.[17] 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.[18]
The 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. [19]This 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. [20]
There are 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.[21] In this sense, arbitration cannot be carried on without the regulation of a national legal system.[22]
Similarly, 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."[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.[24]
The 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.
In the 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."[25]
The fact 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.[26] It is therefore misleading to suggest that parties to arbitration have exclusive right to assign the powers and duties of arbitrators.
However, 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.[27] Equally, they may select a few arbitrators 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.[28]
Another 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
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.[29] Indeed, arbitration agreements are in essence a type of forum selection agreement that attempts to avoid many of the problems related to jurisdiction.[30] Such problems range from whether a court has jurisdiction over the defendant[31] to the unattractiveness of disputing or attempting to enforce a judgment in the other party's country, where the tribunal may be more inclined to favour its own nationals.[32] 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.
Arbitration also provides flexibility, speed, and financial savings in international disputes, whereas litigation can be slow and costly.[33] 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.[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.[35] Thus, the increasing use of international arbitration, when conducted under the auspices of an arbitral institution,[36] shows that "privatised rulemaking" can, at least in the area of comparative law, serve as a practical tool to the international commercial community.[37]
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.
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.
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.
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.
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.
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.
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.
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.
Although the litigation in 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
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.
Moreover, the effectiveness of private international arbitration is dependent "on substantial and predictable governmental and intergovernmental support."[38] 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.
But it has worked.[39] Unlike criminal law, where ideological and other differences between nations have prevented the forming of a unified rule of international law,[40] in private, commercial matters, nations have been willing and able to reach some consensus.[41] Without such a consensus, the explosive expansion of international commerce and the recognition of the global economy would be in doubt.[42]
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.[43] 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
In this 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.[44]
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. 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.[45] The 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. [46] 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 ?
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.[47] 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.[48]
Additionally, online arbitration could provide this effectiveness, because the alternative to legal actions in courts is barely negligible and therefore much less costly. [49]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.[50] Though it is acceptable that most of these 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.[51]
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.[52] 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.[53] Online arrangements may take an account of an arbitration stipulation with a forum assortment clause and a preference of law clausse.
The review outlines certain 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:
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?
Domain names are simply the 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.
There is an inherent conflict between trademark law and the domain name system. In the US
Because of this first-come, 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.[56] Cases of this type thus far have been easily addressed under traditional Lanham Act analysis by the United States courts,[57] 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." [58]
However, domain name registration 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;[59] "pure speculation," the registration of untrademarked popular words as domain names to resell them for profit;[60] and "cybersquatting," the practice of registering domain names that contain trademarks owned by other parties in order to extract a ransom.
The Domain Name System
The Domain Name System, most often known as simply DNS, is a core feature of the 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".
The legal problems in domain name disputes
Consistency is one of the primary virtues of an organized legal system.[61] As the US
Inconsistency in the UDRP is a 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,[64] 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.[65] The registrant of business.com, discussed earlier,[66] is an example of a pure speculator.
In Kompan Inc. v. TheBigstore.com, although arbitrators have not 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.[67] For example, in General Machine Products Co. v. Prime Domains, a unanimous arbitration panel 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.[68] The panel based its decision in part on the 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.[69]
However, not every UDRP panel has taken the same stance on pure speculation. One illustrative case is eResolution v. eResolution.com.[70] 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.[71] 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.
Two recent arbitration decisions 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.
Two recent panel decisions relating 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.
In a subsequent Wal-Mart case, 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.
The opposing Wal-Mart decisions, as 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).
The UDRP provides that, to prevail 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.
Some commentators have voiced the 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.
Special organizations offering domain name
Because of the increasing popularity 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:
· candyland.com: Both Hasbro and an adult entertainment 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
Conclusion
This chapter presents the significant role of the UDRP, the 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.
CONCLUSION
Traditional 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 decision[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 litigation[73].
Additionally, 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[74].
Alternative 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.
To begin with, the internet is naturally worldwide, as selling goods on a Web page on a server actually to be found in Paris is able to be seen to customers in Singapore as in Paris
Moreover, individuals and small 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.
All 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.
Alternative 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.
The 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[75].
In the rapidly expanding Internet environment, time is one 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.
So far, this study has shown the effectiveness of online arbitration. 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.
Concluding that technological 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.
(Note: This conclusion does not 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)
APPENDIX
Table of Cases
eResolution v. eResolution.com [2000] D2000-0110
General Machine Products v. Prime Domains [2000] FA92531
Kompan, Inc. v. TheBigstore.com [2000] 0003000094322
Wal-Mart Stores v. Walsucks [2000] D2000-0477
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
BIBLIOGRAPHY
Books
B. N. Cardozo, The Growth of the Law (Yale: Yale University Press, 1924).
J. Coe, Jr. International Commercial Arbitration: American Principles And Practice In A Global Context. (London: Transnational Publishers Inc, 1997)
W. Craig, W. Park and J. Paulsson, International Chamber of Commerce Arbitration, (Dobbs Ferry, NY: Oceana Publications, 2d ed, 1990)
R. David, Arbitration in International Trade (Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1985)
H. van den Horen, "Commercial Disputes and Their Settlement: A Factor in Business Planning" in International Arbitration: 60 Years of ICC Arbitration--A Look at the Future (Paris: ICC Publishing, 1984)
J. Lew, Applicable Law in International Commercial Arbitration: A Study in Commercial Arbitration Awards (Dobbs Ferry, NY: Oceana Publications Dobbs, 1978)
A. F. Lowenfeld, International Litigation And Arbitration. (London: West Information Pub Group, 1993)
A. Redfern and m. Hunter, Law and Practice of International Commercial Arbitration (London: Sweet & Maxwell, 1999)
A. Redfern, and M. Hunter, Law and Practice of International Commercial Arbitration (London: Sweet and Maxwell, 2nd ed, 1991)
W. Reisman, Systems Of Control In International Adjudication And Arbitration (Durham, Carolina: Duke University Press, 1992)
J. Robert, Arbitrage: Civil et Commercial (Paris: DAloz, 1967)
J. Robert and T. Carbonneau, The French Law of Arbitration. (New York: Matthew Bender, 1983)
K. Titigawa, "Contractual Autonomy in International Commercial Arbitration" in P. Sanders (ed.) International Arbitration: Liber Amicorum for Martin Domke. (Hague: Martinus Nijhoff, 1967)
A. J. van den Berg, The New York
A. Walton, and M. Victoria, Russell on Arbitration (London: Stevens, 20th ed, 1982)
Articles
K.P. Berger, 'International Arbitral Practice and the UNIDROIT Principles of International Commercial Contracts' (1998) 40 American Journal of Complementary Law 129
J. Boyle, 'A Nondelegation Doctrine for the Digital Age?' (2000) 50 Duke Law Journal 5
W. E. Burger, 'Isn't There a Better Way
G. Davidson, 'Jurisdiction Over Non-U.S. Defendants' (1998) International Commercial Litigation, PLI Commercial Law Practice Course Handbook Series No. A4-4539
E., Katsh, (2000) 'New frontier. Online ADR becoming a global priority' (2000) Winter Dispute Resolution Magazine 6
E. Katsh, J. Rifkin and A. Gaitenby, (2000) 'E-commerce, E-Disputes, and E-Dispute Resolution in the Shadow of eBay law' (2000) 15 Ohio
P. Lalive, 'Towards a Decline of International Arbitration?' (1999) 4 The Journal of the Chartered Insitute of Arbitrators
G. Lasprogata, 'Virtual Arbitration: Contract Law and Alternative dispute resolution' (2001) 19 Journal of Legal Studies Education 107
J. Quittner, 'What's in a Name? Some Net Addresses Are as Precious as Madison Avenue Real Estate' (1996) June 24 Time
M. Radcliffe, 'Trading on Your Brand Name' (2000) February 14 Legal Times 38
A. S. Rau, 'Contracting Out of the Arbitration Act' (1997) 8 American Revue of International Arbitration, 225
G. Sauser-Hall, 'L'Arbitrage en droit international Privé' (1952) 44 Ann. Inst. Dr. Int'l 1
H. Smit, 'A-National Arbitration' (1989) 629 Tulane Law Review 63
A. Vahrenvald, 'Out of Court dispute settlement systems for e-commerce' (2000) May 29 Report on legal issues, Joint Research Centre of the EC, Ispra (Italy
Websites
eResolution v. eResolution.com http://arbiter.wipo.int/domains/decisions/html/2000/d2000-0110.html
Kompan, Inc. v. TheBigstore.com
http://www.arb-forum.com/domains/decisions/94322.htm
Wal-Mart Stores, Inc. v. Walsucks and Walmarket Puerto Rico
http://www.worldlii.org/int/cases/GENDND/2000/728.html
General Machine Products v. Prime Domains http://arbiter.wipo.int/domains/decisions/html/2001/d2001-0509.html
Perritt, H. H. 'Dispute Resolution in Cyberspace: Demand for new forms of ADR'
http://www.disputes.net.cyberweek2000/ohiostate/perritt1.htm
[1] David, R. (1985) Arbitration in International Trade . Deventer Netherlands
[2] van den Horen, H. (1984) "Commercial Disputes and Their Settlement: A Factor in Business Planning" in International Arbitration: 60 Years of ICC Arbitration--A Look at the Future . ICC Publishing, Paris.
[3] Robert, J. (1967) Arbitrage: Civil et Commercial . Dalloz, Paris.
[4] Lasprogata, G. (2001) Virtual Arbitration: Contract Law and Alternative dispute
resolution, Journal of Legal Studies Education Vol. 19 No. 107
[5] Katsh, E., Rifkin, J., Gaitenby, A., (2000) E-commerce, E-Disputes, and E-Dispute Resolution in the Shadow of eBay law, Ohio State Journal of Dispute Resolution, No. 15 , pp.705
[6] Katsh, E., (2000) New frontier. Online ADR becoming a global priority, in Dispute Resolution Magazine, winter, pp..6.
[7] Lalive, P., (1999) Towards a Decline of International Arbitration?, The Journal of the Chartered Insitute of Arbitrators, No. 4.
[8] Vahrenvald, A. (2000) Out of Court dispute settlement systems for e-commerce, Report on legal issues, Joint Research Centre of the EC, Ispra (Italy
[9] Lasprogata, G. (2001) Virtual Arbitration: Contract Law and Alternative dispute resolution, Journal of Legal Studies Education Vol. 19 No. 107
[10] supra. Katsh, E., Rifkin, J., Gaitenby, A., (2000)
[11] supra. Lalive, P., (1999)
[12] supra. Vahrenvald, A. (2000)
[13] supra. Katsh, E., (2000)
[14] David, R. (1985) Arbitration in International Trade . Deventer Netherlands
[15] van den Horen, H. (1984) "Commercial Disputes and Their Settlement: A Factor in Business Planning" in International Arbitration: 60 Years of ICC Arbitration--A Look at the Future . ICC Publishing, Paris.
[17] Redfern, A. and Hunter, M. (1991) Law and Practice of International Commercial Arbitration 2d ed. Sweet and Maxwell, London
[18] Walton, A. and Victoria London
[19] Lew, J. (1978) Applicable Law in International Commercial Arbitration: A Study in Commercial Arbitration Awards . Oceana Publications Dobbs Ferry , NY
[21] Titigawa, K. (1967) "Contractual Autonomy in International Commercial Arbitration" in P. Sanders (ed.) International Arbitration: Liber Amicorum for Martin Domke. Martinus Nijhoff. Hague.
[23] Sauser-Hall, G. (1952) "L'Arbitrage en droit international Privé" Ann. Inst. Dr. Int'l Vol. 44-1
[24] supra. Lew, 1978
[25] Robert, J. and Carbonneau, T. (1983) The French Law of Arbitration. Matthew Bender, New York
[26] van den Berg, A. J. (1981) The New York Deventer Netherlands
[27] Craig, W., Park, W. and Paulsson, J. (1990) International Chamber of Commerce Arbitration, 2d ed. Oceana Publications, Dobbs Ferry , NY
[29] Coe, J. Jr. (1997) International Commercial Arbitration: American Principles And Practice In A Global Context. Transnational Publishers Inc.
[31] Davidson, G. (1998) Jurisdiction Over Non-U.S. Defendants. In International Commercial Litigation, PLI Commercial Law Practice Course Handbook Series No. A4-4539
[32] supra. Lowenfeld, A. F. (1993)
[34] Wilner, G. M. (1996) Domke on Commercial Arbitration: the Law and Practice of Commercial Arbitration. Deerfield , IL
[35] Burger, W. E. (1982) Isn't There a Better Way
[36] Reisman, W. (1992) Systems Of Control In International Adjudication And Arbitration. Durham Carolina
[37] Berger, K.P. (1998) International Arbitral Practice and the UNIDROIT Principles of International Commercial Contracts, American Journal of Complementary Law Vol. 40. No. 129
[47] supra. Lalive, 1999
[54] Mark Radcliffe, Trading on Your Brand Name, LEGAL TIMES, Feb. 14, 2000 , at 38.
[55] Joshua Quittner, What's in a Name? Some Net Addresses Are as Precious as Madison Avenue Real Estate, TIME, June 24, 1996
[56] Ibid.
[57] Ibid.
[58] Ibid.
[59] Krisna V. 2001
[60] supra. Krisna V. 2001
[61] BENJAMIN N. CARDOZO, THE GROWTH OF THE LAW 3 (1924).
[62] Ibid.
[63] supra. Cardoza 1924
[64] James Boyle, A Nondelegation Doctrine for the Digital Age?, 50 DUKE L.J. 5, 14 (2000)
[65] Ibid.
[66] Ibid.
[67] Kompan Inc., v. TheBigstore.Com, FA0003000094322 (Nat'l Arb. Forum Apr. 18, 2000 ) (on file with the Duke Law Journal) (refusing to transfer bigtoys.org); Dog.com, Inc. v. Pets.com, Inc., FA0093681 (Nat'l Arb. Forum Mar. 31, 2000 ) (on file with the Duke Law Journal) (refusing to transfer dogs.com).
[68] ibid.
[70] No. D2000-0110 (WIPO Apr. 10, 2000 ), available at http://arbiter.wipo.int/domains/decisions/html/2000/d2000-0110.html (on file with the Duke law Journal). The eResolution complainant, interestingly, was one of ICANN's four approved dispute resolution providers. Id.
[71] supra. National Arab Forum 2000
[72] Redfern, A. and Hunter, M (1999), Law and Practice of International Commercial Arbitration, London
[73] Van Den Berg, A. J. (1981), The New York Deventer Boston
[74] Rau, A. S. "Contracting Out of the Arbitration Act", 8 American Revue of International Arbitration, 225 (1997), p. 242.
[75] Perritt, H. H. 'Dispute Resolution in Cyberspace: Demand for new forms of ADR', in: http://www.disputes.net.cyberweek2000/ohiostate/perritt1.htm p. 17.
Never miss a thing. Make Yahoo your homepage.
No comments:
Post a Comment