Tuesday, November 29, 2011

International Online Dispute Resolution

Commercial transactions have transborder ramifications. A person resident in country A may purchase a good from country B and make payment to country C. If a dispute occurs due to defect or impropriety of such good, multiple jurisdictions are involved. This makes the dispute resolution procedure costly, time consuming and highly unproductive.

These days’ alternative dispute resolution (ADR) mechanisms are considered more favourably than traditional litigation methods for resolving various commercial disputes. Further, with growing use of information and communication technology (ICT), online dispute resolution can also be an effective mode of dispute resolution.

However, International response to online dispute resolution (ODR) is still lukewarm. ODR has been increasingly seen as a good and viable option for commercial disputes resolutions. However, adoption of ODR at the national and international level is still not satisfactory.

Online dispute resolution (ODR) and international response is though improving yet international organisations like United Nations have to play a more pro active role in this regard. United Nations and online dispute resolution has seen a significant development in the recent past and more is expected in this regard. Similarly, ODR must be supplemented by other judicial technological innovative mechanisms like electronic courts.

Online dispute resolution in India is still in its infancy stage. ADR and ODR services in India are still evolving. Naturally, online dispute resolution services in India are still evolving. We have very few online dispute resolution centers in India. Further, Perry4Law Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India.

Similarly, e-courts in India have still not been developed. Of course, we have computerised some courts in India but mere computerisation of courts is not establishment of e-courts. A successful establishment of e-court in India requires managing all traditional litigation related issues in an online environment that is presently missing in India. Further, training of e-court staff is also required. We have a single techno legal e-courts training and consultancy centre of India and world wide managed by PTLB.

Clearly, ODR and e-courts need to be developed further at both national and international levels. Although work in these directions is in progress yet we need to increase the speed at which these developments are taking place. But the future of ODR and e-courts is definitely bright and they must be adopted and used at both national and international level.

Monday, November 28, 2011

International Response To Online Dispute Resolution

Internationally dispute resolution for commercial transactions is increasingly seen as an important aspect before starting any business venture at a particular jurisdiction. If a nation has bad reputation for dispute resolution through traditional litigation, foreign direct investment in and business development of that nation is adversely affected.

Online dispute resolution (ODR) is growingly seen as an effective alternative dispute resolution mechanism world over. Traditional litigation methods are time consuming, expensive and unproductive. ODR is not only speedier but is also economical and effective.

Online dispute resolution in India is still in its infancy stage. This is so because even the alternative dispute resolution in India is not free from troubles and procedural formalities.

However, success of ODR in India is still doubtful. To be successful, ODR in India needs urgent rejuvenation. This has happened because legal enablement of ICT systems in India is missing. ADR and ODR services in India are still evolving. There are very few ODR service providers in India.

Naturally, online dispute resolution services in India are still evolving. We have very few online dispute resolution centers in India. Further, Perry4Law Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India.

Techno legal ODR services have become necessary due to growing use of information technology for business and commercial purposes world over. For instance, ODR and cross border e-commerce transactions are also interrelated. Similar is the case regarding dispute resolution of cross border technology transactions.

Similarly Online dispute resolution in Asia is still evolving. Online dispute resolution in Asian countries is largely confined to a single or two countries that also to a limited extent. Clearly online dispute resolution standards of practice for India and Asia need to be developed urgently.

However, nothing can strengthen ODR more than international efforts and international coordination activities. International legal standards for online dispute resolution (ODR) and international harmonisation of ODR is urgently required.

United Nations can play am important role in international development and international harmonisation of ODR. United Nations and online dispute resolution are closely related in this regard. In fact, UNCITRAL, ODR and India are interconnected.

Thus, it is clear that whether it is India, Asia, Europe, United States or any other international country or territory, ODR would play a very important role in effective, economical and speedier dispute resolution. Of course, United Nations has to play a more pro active role in this regard at the international level.

Thursday, November 24, 2011

Dispute Resolution In Technology Transactions

Technology transactions are being entered into and transacted world over. These technology transactions have global impact and global ramifications. However, when it comes to disputes resolution, global transactions have their own problems.

Since there are numerous jurisdictions involved in technology transactions, it is always better to decide in advance the resolution method of any possible future technology transactions disputes.

Dispute resolution of cross border technology transactions is a complicated process if we adopt traditional litigation methods to resolve them. Dispute resolution in technology transactions and dealings requires an effective, timely and cost effective mechanism. Traditional litigation is definitely not the place to achieve these objectives.

Obviously, we need an effective alternative to traditional litigation methods to resolve cross border technology transactions and dispute resolutions. Alternative dispute resolution (ADR) mechanisms like arbitration, conciliation, mediation, etc can be used effectively to resolve these technology transactions disputes.

However, even ADR has its own limitations as compared to technology driven dispute resolution mechanisms. These days online dispute resolution (ODR) is increasingly considered as a viable option for resolving various disputes. Technology transactions disputes can be effectively resolved using ODR techniques.

For instance, online dispute resolution (ODR) for cross border e-commerce transactions is already been used to resolved small value disputes. Very soon ODR may be extended for high value disputes and other category of disputes. Similarly, domain name disputes resolution is also effectively resolved through ODR mechanism by many individuals and organisations world over.

ODR at the international level needs to be strengthened. For this we need an international harmonisation of ODR legal framework as well as suitable policies at the national level. Efforts in this direction have already been undertaken at the international level and very soon we may see some development in this regard.

Saturday, October 8, 2011

Privacy Laws In India, Dispute Resolution And ODR

Privacy rights are central to almost all the things and concepts. The same applies to dispute resolution in general and online dispute resolution (ODR) in particular. When parties submit their personal details, confidential information and other sensitive matter, it become utmost important to protect all such information.

We have no dedicated privacy laws in India and data protection laws in India. Naturally, this is a troublesome and undesirable situation. The supreme court of India has interpreted Article 21 as empowering Indian citizens with right to privacy in India.

However, despite this constitutional protection, various governmental projects in India are opening ignoring Article 21 and are clearly violating the same. This is happening because we have no national privacy policy in India.

Further, we have no privacy laws in India as well. Although some privacy guidelines have been issued by one or two departments of Indian government yet they are far from satisfactory and cannot replace a well structured privacy law of India.

Privacy rights in the information era require a totally different outlook. In fact, privacy rights form an essential part of civil liberties protection in cyberspace that India is presently ignoring.

For instance, consider the projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc.

They must be supported by a techno legal framework and must be civil liberty complaint. Presently, none of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny. These projects are openly violating various human rights/civil liberties, including right to privacy.

It is high time to formulate privacy laws in India so that constitutional freedoms and rights are not considered to be just legal jargon we no actual implementation. Further, it is also required so that online commercial dispute resolution in India can survive and grow. The sooner privacy laws are formulated in India the better it would be for all stakeholders.

Monday, September 19, 2011

Online Commercial Arbitration In India

Arbitration is a cost effective and expeditious dispute resolution mechanism. A majority of commercial disputes are resolved through the mode of arbitration. International commercial arbitration has also become an emerging trend these days. Generally, an arbitration clause is incorporated in various contracts and commercial contracts that prescribe resolution of a future dispute through arbitration.

Traditional litigation is not a productive mechanism to resolve disputes as it is costly and time consuming in nature. Thus, there is a gradual shift from litigation to arbitration in commercial matters.

A new aspect has been added to commercial dispute resolution and commercial arbitration by the information and communication technology (ICT). ICT has introduced a novel dispute resolution mechanism known as online dispute resolution (ODR). Although ODR in India has still to keep a pace yet it has been used in developed countries for many purposes, especially for resolving cross border e-commerce disputes.

At Perry4Law Techno Legal Base (PTLB) we are not only providing training and courses on ODR but are also actively using the same for contractual and commercial disputes resolution in India. In fact, Perry4Law and PTLB have provided the exclusive technology dispute resolution policy of India and ODR policy of India so that ODR may gain popularity and a wider acceptance in India.

PTLB has supplemented its ODR initiatives with other techno legal initiatives. The chief among them are e-courts research and training centre, digital evidencing centre, cyber forensics centre, etc. We hope our initiatives and efforts would be beneficial for the growth of online commercial arbitration in India and world wide.

Wednesday, June 29, 2011

44th Session Of United Nation Commission On International Trade Law (UNCITRAL) In Vienna

United Nations Commission on International Trade Law (UNCITRAL) is currently holding its 44th Session from 27 June to 8 July 2011. It would discuss many important aspects having a direct bearing upon International issues.

This is a very important Session as it is covering many crucial issues that have Trans Border implications. Further, UNCITRAL is also acting as a “Harmonisation Platform” where International Norms and Regulations are formulated for wider international adoption. Among other issues, the finalisation and adoption of draft texts on procurement and insolvency will be key topics for consideration.

The revised text of the UNCITRAL Model Law on Public Procurement, to be considered by the Commission, extends the application of the Model Law to all public procurement, streamlines and strengthens provisions in a number of areas, in particular on remedies and enforcement, and includes new provisions, such as on e-procurement, abnormally low submissions, conflicts of interest, electronic reverse auctions and framework agreements.

The revisions are aimed at assisting States in formulating modern procurement laws where none presently exist or modernising and enhancing their existing procurement law. While developing countries and States whose economies are in transition may find the text of particular benefit, its provisions are intended to be applicable to all States.

Further, another important issue that would be discussed at this Session pertains to finalisation and adoption of judicial materials on the UNCITRAL Model Law on Cross-Border Insolvency. If agreed by the Commission, it is expected that the updating would be undertaken by the Secretariat in consultation with judges and, as appropriate, other insolvency experts.

In the area of technical assistance, the UNCITRAL Secretariat will also inform the Commission of recent developments with regard to the potential establishment of UNCITRAL regional centres and activities to be undertaken by such centres.

The agenda for the meeting also includes reports from working groups, including progress reports on the preparation of texts on transparency in treaty-based investor-State arbitration, online dispute resolution for cross-border electronic commerce transactions and registration of security rights in movable assets.

The coordination of UNCITRAL's work with that of other international organisations active in the field of international trade law, its role in promoting the rule of law, its possible endorsement of the revision of the ICC Uniform Rules for Demand Guarantees and its potential future work are also scheduled for discussion. This is an important session and its outcomes would be very relevant for numerous aspects of International Trade and Dispute Resolution.

Saturday, June 25, 2011

Online Dispute Resolution Standards Of Practice For India And Asia

Online dispute resolution in India (ODR in India) and Asian countries has yet to pick a pace. There is a lack of awareness about the concept of ODR in general and its use in particular.

At Perry4Law and Perry4Law Techno Legal Base (PTLB) we have already provided technology related dispute resolution policy of India and ODR policy of India that Indian government may consider and use while enacting laws regarding ODR and use of technology in dispute resolution.

Perry4Law and PTLB now wish to provide their suggestions regarding the standards of practice that may act as guidelines for practice across the spectrum of ODR in India and Asian countries.

We believe that ODR may be used for a wide variety of purposes and at various stages of dispute resolution. It may be used even before a dispute arises and may be helpful in removing the doubts and difference that may ultimately become a dispute.

We believe that the standards of practice must be not only “technology neutral” but also free from technical and legal complexities. “Party autonomy” must play the decisive role in the use and adoption of ODR in India and Asian countries. If parties prefer to use ODR for dispute resolution, technical and legal requirements must not come as hurdles.

Further, having multiple laws at international level is not conducive for the use of ODR. There is an urgent need to formulate “international standards” regarding use of ODR. Further, “international harmonisation” of ODR principles is also required.

The ODR system must be easily accessible to the parties to ODR mechanism. Effective use of e-governance and language translation service could help in this regard. ODR must also be easy to use and use friendly. Public awareness in this regard is a must and the same must be accompanied with a good techno legal ODR training of the stakeholders. At Perry4law and PTLB we not only spread awareness about use of ODR but are also providing research, education and training regarding ADR and ODR. We are also engaged in ODR and e-courts skills development in India.

Access to justice becomes a major hurdle while using technological solutions like ODR and e-courts. The marginalised segment of population must be made aware of how to use technology for ODR and e-courts purposes.

ODR mechanisms must be transparent and fair regarding the identities and affiliations of the ODR providers, the identities and affiliations of the interveners and managers of the ODR systems, and the security efforts undertaken by the ODR providers to safeguard user data and identity.

Jurisdictional issues and place of dispute resolution must be clearly specified and conveyed to the parties to the dispute. The ODR clauses in legal and non legal agreements must clearly specify the usage of ODR and a particular ODR service provider or panelist. It is generally claimed that the place where the ODR process occurs is where the ODR platform is.

ODR service providers must disclose their physical location and minimum contact details. Of course, without a “professional relationship” being established, other contact details should not be disclosed to prevent “spam communications”.

ODR panelists and service providers must have good techno legal skills and expertise to engage in ODR dispute resolution. A person or institution possessing both technical and legal knowledge (techno legal skills) is the ideal institution or individual for ODR purposes. ODR platforms must also ensure that in cases of need, expertise of professionals from various fields is available on request.

Bona fide works and efforts of ODR service providers and ODR panelists should be legally and equitably protected under all the jurisdictions of the world. A clause in this regard must be incorporated in the ADR and ODR laws of various countries as well as in the agreement to hire ODR services of an individual or institution dealing in ODR service providing.

ODR service providers must ensure privacy, confidentiality and data security of various details, data, information, etc as required by national, regional and international law.

These are just basic level suggestions and more detailed suggestion and policies would be provided by Perry4Law and PTLB in due course of time. We are also working in the direction of providing an ODR legal framework for India that can be adopted by other Asian countries, with or without modifications.

Friday, June 24, 2011

Online Dispute Resolution In Asia

Online dispute resolution (ODR) is the buzz word these days for resolution of various sorts of disputes. ODR is effective, efficient, cost effective and expeditious in nature. However, despite the benefits of ODR, the same is not very popular among the Asian countries.

Even in Indian context, there are very few ODR service providers in India and ODR in India is facing severe legal and technical roadblocks. The arbitration and conciliation act 1996 is the alternative dispute resolution (ADR) law of India. It has served its purpose and it deserves to be replaced by a new and better law that can accommodate ODR as well.

Further, the role of ICT in effective judicial system is also apparent. Technological innovations like e-courts can greatly help in streamlining the aged and collapsing judicial system of India. In the Indian context, we are still waiting for the establishment of first e-court of India.

E-courts require the capability and expertise to provide all litigation services in an online environment. To achieve that purpose we need to have e-courts skills development initiatives in India.

Indian government has recently approved the proposal of Law Ministry to operationalise the National Mission for Justice Delivery and Legal Reforms. The National Mission will focus on improvement in administration of justice and justice delivery and legal reforms in the entire country and it has to address diverse needs of all sections of stakeholders in a Mission Mode approach.

However, despite having sufficient permissions and grants for use of technology in the form of ODR and e-courts, there are no positive outcomes. Lack of expertise and political will seems to be the two major reasons for failure of ODR and e-courts in India.

Asian countries must replicate the successful models of Singapore in the fields of ODR and e-courts. We have talked enough in India and it is high time for us to act now.

Monday, June 20, 2011

Techno Legal Assistance By PTLB For Filing GTLD Applications To ICANN

The world of domain name has been significantly changed after the Internet Corporation for Assigned Names and Numbers (ICANN) approved its long-awaited new gTLD allotments at its Second Public Meeting of the year on 20th June 2011 at Singapore. However, ICANN 41 is much more than just gTLD meeting as many more crucial and related issues would also be discussed.

Meanwhile, it has been finally decided that gTLDs would be issues during the starting of next year. Although the decision has been taken yet there are many challenges that must be successfully met in order to enjoy the benefits of gTLDs. Further, the window of opportunity would be opened for a short period of time hence there is no scope for any mistakes.

The period for applying for gTLDs would starts on January 12, 2012, and will end on April 12, 2012. Applicants must apply within this short period of time that also successfully and without mistakes.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that the trademark owners, brand owners, etc must start getting enough knowledge about the procedure as soon as possible. This way they can formulate their strategies in this regard much before the application period begins.

Since the conditions imposed by ICANN are very stringent, it would be a smart move to constitute a team of techno legal experts who can successfully file the application and get the gTLD registered.

Interested persons or organisations may contact PTLB in this regard for collaborations or partnerships. Further, those interested in obtaining a gTLD may also contact us in this regard, if they deem it necessary.

Atlas Productions Lost WIPO’s Arbitration Case

Adaptation of novels and stories for movies is not a new concept. It has been in existence for decades. However, not all adaptations are free from disputes. In fact entertainment and media industry disputes are rising all over the world.

Such entertainment and media industry disputes are also increasing fast in India and other Asian countries. However, the disputes of entertainment and media industry in Asian countries, including India, are mostly settled in a court of law and not through alternative dispute resolution (ADR) or online dispute resolution (ODR) mechanisms.

Strangely, Asian countries are almost always “respondents” when it comes to fighting such disputes at international organisations like World Intellectual Property Organisation (WIPO). This is contrary to the position in developed countries where persons or institutions approaching international institutions are petitioners or complainants. WIPO follows the Uniform Domain-Name Dispute-Resolution Policy (UDRP) of ICANN for resolving various domain name related disputes.

One such entertainment industry case that has recently come before WIPO was filed by Atlas Productions. The case involved the movie adaptation of Atlas Shrugged novel. Last year its production began and Atlas Shrugged: Part 1 was showed in select theaters earlier this spring.

Shortly after the opening, Atlas Productions, a New Jersey company, filed for UDRP arbitration against the owner of the domain name AtlasShruggedMovie.com, claiming that it had acquired the exclusive movie rights to Atlas Shrugged by assignment in 1992. Unfortunately, the company, represented by Loeb & Loeb, LLP, was unable to provide never a copy of that assignment to the WIPO Panelist who arbitrated the dispute. Moreover, it was unable to prove that the owner had registered the domain in bad faith; notably, the domain was registered more than five years before Atlas Productions began to promote the movie.

Ultimately, the WIPO Panelist denied the complaint. The Panelist also held that “Evidence, not allegations, is necessary. And nothing is more fundamental to a Policy proceeding – or more within a complainant’s control – than its right to enforce the trademark upon which it bases its case. If Complainant did acquire trademark rights by contract, documentary or other evidence of such rights was surely available to it. Absence of such evidence raises real doubt about Complainant’s entitlement to bring this proceeding.”

This is a good decision as evidence is the core of any complaint and if evidence itself is missing the complaint is frivolous and deserves to be set aside. Since entertainment and media industry disputes would further increase in the future, Perry4Law and Perry4Law Techno Legal Base (PTLB) suggests that media houses must have a clear cut policy in this regard.

Sunday, June 19, 2011

Uniform Domain Name Dispute Resolution Policy Of ICANN

The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a process established by the Internet Corporation for Assigned Names and Numbers (ICANN) for the resolution of disputes regarding the registration of Internet Domain Names. The UDRP currently applies to all .biz, .com, .info, .name, .net, and .org top-level domains, and some country code top-level domains. It is supplemented by Rules for Uniform Domain Name Dispute Resolution Policy (Rules).

Now ICANN is planning to expand the list of generic top level domain names (gTLD) among other things. The same would be decided by ICANN through a vote at the second public meeting of the year on 19-20th June 2011 at Singapore.

Since domain name disputes are going to increase in near future, Perry4Law Techno Legal Base (PTLB), the premier techno legal segment of India’s exclusive techno legal ICT and IP Law Firm Perry4Law, is sharing the UDRP procedure with all interested person and institutions.

Readers are strongly advised to refer the original sources at ICANN as the UDRP and Rules may change from time to time. Further, the reference to ICANN may be considered to be the reference to concerned “Registrar” where the context so requires.

By applying to register a domain name or by asking the registrar to maintain or renew a domain name registration, the applicant represent and warrant to the registrar that:

(a) The statements that he made in his Registration Agreement are complete and accurate;

(b) To his knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party;

(c) He is not registering the domain name for an unlawful purpose; and

(d) He will not knowingly use the domain name in violation of any applicable laws or regulations.

Thus, it is the applicant’s responsibility to determine whether his domain name registration infringes or violates someone else's rights.

All registrars must follow the UDRP. Under the policy, most types of trademark-based domain-name disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name. Disputes alleged to arise from abusive registrations of domain names (for example, cybersquatting) may be addressed by expedited administrative proceedings that the holder of trademark rights initiates by filing a complaint with an approved dispute-resolution service provider.

Thus, to invoke the policy, a trademark owner should either

(a) File a complaint in a court of proper jurisdiction against the domain-name holder (or where appropriate an in-rem action concerning the domain name) or

(b) In cases of abusive registration submit a complaint to an approved dispute-resolution service provider.

The registrar will cancel, transfer or otherwise make changes to domain name registrations under the following circumstances:

(a) Subject to the provisions of Paragraph 8, on receipt of written or appropriate electronic instructions by the registrar from a complainant or his authorised agent to take such action;

(b) On receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; and/or

(c) On receipt of a decision of an Administrative Panel requiring such action in any administrative proceeding to which the complainant was a party and which was conducted under this Policy or a later version of this Policy adopted by ICANN. (See Paragraph 4(i) and (k) below.)

The registrar may also cancel, transfer or otherwise make changes to a domain name registration in accordance with the terms of his Registration Agreement or other legal requirements.

Paragraph 4 of the UDRP mentions about the circumstance when administrative proceedings are mandatory. These proceedings will be conducted before one of the administrative-dispute-resolution service providers (each, a "Provider") listed at ICANN.

Paragraph 4(a) provides that the domain name holder must submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that:

(i) Holder’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) Holder has no rights or legitimate interests in respect of the domain name; and

(iii) Holder’s domain name has been registered and is being used in bad faith.

In the administrative proceeding, the complainant must prove that each of these three elements are present.

Paragraph 4(b) provides that for the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

(i) Circumstances indicating that holder has registered or holder has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of his documented out-of-pocket costs directly related to the domain name; or

(ii) Holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that holder has engaged in a pattern of such conduct; or

(iii) Holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) By using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to his web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of his web site or location or of a product or service on his web site or location.

Paragraph 4(c) provides that when the holder of a domain name receives a complaint, he should refer to Paragraph 5 of the Rules of Procedure in determining how his response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate his rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

(i) Before any notice to the holder of the disputed domain name, his use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) The holder (as an individual, business, or other organisation) has been commonly known by the domain name, even if he has acquired no trademark or service mark rights; or

(iii) The holder is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Paragraph 4(d) provides that the complainant shall select the Provider from among those approved by ICANN by submitting the complaint to that Provider. The selected Provider will administer the proceeding, except in cases of consolidation as described in Paragraph 4(f).

Paragraph 4(e) provides that the Rules of Procedure state the process for initiating and conducting a proceeding and for appointing the panel that will decide the dispute (the "Administrative Panel").

Paragraph 4(f) provides that in the event of multiple disputes between the holder and a complainant, either the holder or the complainant may petition to consolidate the disputes before a single Administrative Panel. This petition shall be made to the first Administrative Panel appointed to hear a pending dispute between the parties. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by ICANN.

Paragraph 4(g) provides that all fees charged by a Provider in connection with any dispute before an Administrative Panel pursuant to this Policy shall be paid by the complainant, except in cases where the holder elects to expand the Administrative Panel from one to three panelists as provided in Paragraph 5(b)(iv) of the Rules of Procedure, in which case all fees will be split evenly by the holder and the complainant.

Paragraph 4(h) provides that the ICANN do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, ICANN will not be liable as a result of any decisions rendered by the Administrative Panel.

Paragraph 4(i) provides that the remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of holder’s domain name or the transfer of his domain name registration to the complainant.

Paragraph 4(j) provides that the Provider shall notify ICANN of any decision made by an Administrative Panel with respect to a domain name the holder has registered with ICANN. All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.

Paragraph 4(k) provides that the mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either the holder or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that holder’s domain name registration should be canceled or transferred, ICANN will wait ten (10) business days (as observed in the location of ICANN’s principal office) after ICANN is informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. ICANN will then implement the decision unless it has received from the holder of a domain name during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that the holder has commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is either the location of ICANN’s principal office or of holder’s address as shown in ICANN’s Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If ICANN receives such documentation within the ten (10) business day period, it will not implement the Administrative Panel's decision, and it will take no further action, until it receives:

(i) Evidence satisfactory to ICANN of a resolution between the parties;

(ii) Evidence satisfactory to ICANN that holder’s lawsuit has been dismissed or withdrawn; or

(iii) A copy of an order from such court dismissing holder’s lawsuit or ordering that holder do not have the right to continue to use your domain name.

All other disputes between the holder of a domain name and any party other than ICANN regarding holder’s domain name registration that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 4 shall be resolved between the holder and such other party through any court, arbitration or other proceeding that may be available.

ICANN will not participate in any way in any dispute between holder and any party other than ICANN regarding the registration and use of holder’s domain name. Holder/Complainant shall not name ICANN as a party or otherwise include ICANN in any such proceeding. In the event that ICANN is named as a party in any such proceeding, ICANN reserves the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend itself.

ICANN will not cancel, transfer, activate, deactivate, or otherwise change the status of any domain name registration under this Policy except as provided in Paragraph 3 above.

The holder may not transfer his domain name registration to another holder

(i) During a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of fifteen (15) business days (as observed in the location of ICANN’s principal place of business) after such proceeding is concluded; or

(ii) During a pending court proceeding or arbitration commenced regarding holder’s domain name unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator. ICANN reserves the right to cancel any transfer of a domain name registration to another holder that is made in violation of this subparagraph.

The holder may not transfer his domain name registration to another registrar during a pending administrative proceeding brought pursuant to Paragraph 4 or for a period of fifteen (15) business days (as observed in the location of ICANN’s principal place of business) after such proceeding is concluded. Holder may transfer administration of his domain name registration to another registrar during a pending court action or arbitration, provided that the domain name he has registered with ICANN shall continue to be subject to the proceedings commenced against him in accordance with the terms of this Policy. In the event that the holder transfers a domain name registration to ICANN during the pendency of a court action or arbitration, such dispute shall remain subject to the domain name dispute policy of the registrar from which the domain name registration was transferred.

ICANN reserves the right to modify this Policy at any time. ICANN will post its revised Policy at at least thirty (30) calendar days before it becomes effective. Unless this Policy has already been invoked by the submission of a complaint to a Provider, in which event the version of the Policy in effect at the time it was invoked will apply to the holder until the dispute is over, all such changes will be binding upon the holder with respect to any domain name registration dispute, whether the dispute arose before, on or after the effective date of ICANN’s change. In the event that the holder objects to a change in this Policy, his sole remedy is to cancel his domain name registration with ICANN, provided that he will not be entitled to a refund of any fees he paid to ICANN. The revised Policy will apply to the holder until he cancels his domain name registration.

Saturday, June 18, 2011

Domain Names, Brands, Trademarks, Cybersquatting, ICANN And WIPO

The Internet Corporation for Assigned Names and Numbers (ICANN) would hold the Second Public Meeting of the year on 20th June 2011 at Singapore. ICANN administers the Internet’s Domain Name System. ICANN could vote to approve its proposed program to introduce an unlimited number of new Generic Top-Level Domain Names (GTLD ).

This proposal has far reaching consequences for Domain Name, Brands holders, Trademark owners and even for International Organisations like ICANN and World Intellectual Property Organisation (WIPO). This decision would give a new meaning to Domain Names Protection, Brands Protection, Trademarks Protection, Cybersquatting Disputes Resolution, Cyber Law Compliances, Cyber Security requirements, Cyber Due Diligence, etc.

Domain Name Protection would now require additional resources and efforts as the number of Cybersquatting cases would increase drastically. Even WIPO had confirmed in the past that Cybersquatting cases have increased significantly. This would increase the demand for Domain Name and Cyber Squatting Dispute Resolution Services at National and International level.

It would now be more difficult for Companies to protect their Brands. With an increased numbers of GTLDs, Brand Owners would be required to register, monitor and enforce their Trademarks across the Globe. International Institutions and Organisations like ICANN, WIPO, etc would require “Additional Experts” to resolves these Disputes.

Further, the introduction of large numbers of new GTLDs will also bring additional complexities and costs, raise additional Cyber Security Challenges for Organisations seeking to secure their online presence, maintain the integrity of their brands, and enhance their consumers’ online experience. The growing cyber attacks upon International Companies and Organisations like Gmail, Citicorp, etc proves this point. This is the reason why ICANN and INTERPOL are exploring methods to enhance Internet Security.

Right now, it would cost $185,000 US to apply, and Individuals or Organisations will have to show a “Legitimate Claim” to the name they are buying. This would significantly increase the workload of ICANN as “Claims” have to be “Formally Adjudicated” before being approved by ICANN.

Meanwhile, Companies, Brand holders and Trademark holders must start strengthening their in house legal capabilities or hire services of good law firms to meet the possible challenges that the new GTLDs would unleash. Failure to do so will put at risk their Brands and Trademarks and put at risk the trust, goodwill, and secure relationships with their consumers that these businesses have worked so hard to achieve.

Friday, June 10, 2011

WIPO Mediation and Expedited Arbitration For Film and Media

The World Intellectual Property Organisation (WIPO) has been providing world class Dispute Resolution Services for long. One such Service is known as WIPO Mediation and Expedited Arbitration for Film and Media.

To achieve this objective, the WIPO Mediation and Expedited Arbitration Rules for Film and Media have been specifically tailored to resolve disputes in the film and media sectors.

Developed by the WIPO Arbitration and Mediation Center in cooperation with industry experts, these Rules, as well as the special model contract clauses and submission agreements, are particularly appropriate for international film and media transactions where parties require an expedited dispute resolution process.

The present trend shows that Asian Film Companies had a lot to gain from the use of Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) Mechanisms instead of approaching the traditional litigation methods through Courts.

However, what is surprising is that fact that Asian Companies are mostly Respondents and are on the receiving end. This may be due to two reasons. Firstly, a majority of Respondents may be defending themselves against the Intellectual Property Rights (IPRs) violations cases. Secondly, Asian Companies may not be effectively using the ADR and ODR Dispute Resolution Services of International Organisations and Institutions.

A great deal of ADR and ODR Disputes are “Referred” by Law Firms and Practicing Legal Professionals. They incorporate suitable “ADR and ODR Clauses” in the Technology Agreements, Film and entertainment related Agreements, etc. If these Firms and Professionals do not incorporate proper Arbitration Clause, a Dispute can never reach to International Organisations and would land up in a Court of Law.

At Perry4Law we are very particular of these considerations and we Draft various Technology Related, Cross Border E-Commerce Disputes related, Cross Border Consumer Agreements related and many such more Agreement accordingly. Of course, this is done only after duly informing the Parties to the Agreement and respecting the “Party Autonomy” concept.

Further, while drafting and vetting Contractual Agreements involving Technology Transfers and Licensing, we specifically and consensually incorporate an ADR/ODR Clause mandating “Institutional Arbitration” through Institutions like WIPO Arbitration and Mediation Center or UNCITRAL based Arbitration Institutions, etc.

However, WIPO’s Mediation and Expedited Arbitration for Film and Media initiative cannot succeed till it is a part of “Holistic Effort” comprising of Law Firms and Professionals spread all over the globe.

Monday, May 30, 2011

Technology Dispute Resolution Providers Empanelment In India

Dispute resolution of cross border technology transactions have increased a lot. World over, individuals and organisations are working in the direction of use of online dispute resolution (ODR) for resolution of such technology related disputes.

Although this is good trend in the right direction yet there are no harmonised legal standards for use of ODR at international level. International harmonisation of ODR norms and principles is need of the hour.

In the Indian context we have very limited use of ODR for dispute resolutions. Neither the legal framework of India nor dispute resolution providers of India prefers ODR as a medium of dispute resolution.

At Perry4Law and Perry4Law Techno Legal Base (PTLB), we have suggested an international dispute resolution policy of India. This policy advocates active use of ODR in India and is the exclusive ODR policy of India.

PTLB is also in talks with national and international organisations to facilitate and encourage use of technology dispute resolutions and ODR in India and world wide. PTLB is looking forward for active national and international collaborations in this regard. Interested national and international organisations may contact us with their proposals in this regard.

Further, arbitrators, lawyers, mediators, conciliators, ODR experts, neutrals, etc that wish to work in association with PTLB may also empanel with it. Interested individuals must meet the prescribed procedure in order to be empanelled with PTLB.

A minimum five years experience in arbitration matters is required to be empanelled with PTLB. The empanelment would be for minimum of one year (1) and maximum of five (5) years. The empanelment may be renewed at the discretion of PTLB and Perry4Law. The requisite Performa for Individuals can be downloaded from “Here”. The Firms, Companies, Institutions, etc can download the Performa from “Here”.

The application form must be accompanies with proper fees in order to be analysed. Perry4Law and PTLB have the sole discretion to accept or reject the empanelment requests. It would be better if applicants seek an opinion of PTLB in this regard well in advance through an e-mail. Kindly do not remit any fees or money till a positive confirmation is given by PTLB for the possible inclusion of the applicant. Applicants are strongly advised to go through the “Empanelment Procedures” before applying.

Friday, May 27, 2011

Legal Standards For Online Dispute Resolution For Cross-Border Electronic Transactions

Online dispute resolution (ODR) is a cost effective and convenient method of dispute resolution. Rather than depending upon the traditional litigation method, ODR provides an alternative and effective dispute resolution mechanism.

Commercial Transactions and Cross Border E-Commerce Transactions can be greatly benefited if disputes arising out of same are redressed through use of ODR rather than traditional courts. Further, dispute resolution of Cross Border Technology Transactions can also be effectively resolved using ODR.

However, there is a need to clarify the categories of Technology, E-Commerce and Cross Border Disputes that might be solved by using ODR, appropriate Procedural Rules for ODR, the possibility or desirability to maintain a single database of ODR Service Providers, and the issue of Enforcement of Awards made through the ODR process under the relevant International Conventions.

Here lies the true problem. Conflict of Laws is the real issue that has to be addressed as different Jurisdictions may have different Legal and Regulatory Frameworks in this regard. International Legal Standards for ODR are still missing. This is preventing International Harmonisation of ODR that is missing till now.

Even United Nations Commission on International Trade Law (UNCITRAL) has not achieved this task so far. This is the main reason why there is no coordination between UNCITRA, ODR and India. International Organisations like World Intellectual Property Organisation (WIPO) must further strengthen its Technology Dispute Resolution Services. Even EU India ODR Development Dialogue must also be initiated by both countries. In fact, EU has already planned to use ODR for Cross Border Consumer Disputes.

In the Indian context, ODR is facing severe Legal Roadblocks in India. We have no dedicated Legal Framework for ODR in India. Even an ODR Policy of India is missing. ODR in Asian Countries is still not popular.

At Perry4Law and Perry4Law Techno Legal Base (PTLB) we have been providing Techno Legal Technology Dispute Resolution Policies and Strategies. We have suggested a Technology Dispute Resolution Policy of India and ODR Policy of India.

We are also in talk with International Organisations and Institutions working in this regard so that Harmonisation of ODR Framework may be possible. We hope our Initiatives would be helpful for the International and National ODR Community.

Sunday, April 3, 2011

Dispute Resolution Of Cross Border Technology Transactions

By
Praveen Dalal

Dispute Resolution in Cross Border Technology Transactions is an area that has tremendous potential. There are diverse natures of Information and Communication Technology (ICT) related disputes that can be effective solved using Alternative Dispute Resolution (ADR) or Online Dispute Resolution Mechanisms.

However, the crucial question is whether India is ready for Dispute Resolution of Cross Border Technology Transactions and E-Commerce Transactions? I am not talking about use of traditional Litigation Methods for the same. Of course, they are sufficient to resolve these Technology Related Disputes. What I am discussing here is use of ADR and ODR by Individual Panelists and Institutional Arbitration Institutions of India.

The present ODR Regime of India is facing severe Legal Roadblocks. We have neither Legal Framework nor Technical Expertise to engage in high profile and highly technical Technological Disputes. We have no Domain Name Protection Law in India and even Cyber Squatting cases are decided under the Indian Trademark Act, 1999. Even Institutional Arbitration Framework has not been adequately developed by India to resolve such disputes.

Even Domain Name Dispute Resolution in India through ODR is not very popular in the absence of International Harmonisation of ODR Framework. International Harmonisation of ODR is required that is presently governed by different sets of Rules and Procedures.

Just like Uniform Domain Name Dispute Resolution Policy (UDRP) is a Standard for resolving Domain Name Disputes, similar Standards and Norms must be established for all Technology Related Disputes resolvable by using ODR mechanism. Institutions like WIPO, United Nations Commission on International Trade Law (UNCITRAL), etc must think and work in this direction. We must also either amend the Indian Trademark Act, 1999 or enact a separate Cyber Squatting Law of India.

With a pro active approach at both National and International Levels, Technology related disputes can be effectively and economically resolved. We at Perry4Law and Perry4Law Techno Legal Base (PTLB) are working in this direction. Collectively, the exclusive E-Courts Training and Consultancy Centre of India manage the issues of ADR, ODR, E-Courts, Domain Name Dispute Resolution in India, etc.

We hope our initiatives would prove useful to all concerned, especially to WIPO and UNCITRAL.

Wednesday, February 9, 2011

ODR In India Is Facing Severe Legal Roadblocks

By
Praveen Dalal

Online Dispute Resolution (ODR) is an effective mechanism to resolve certain types of disputes in an amicable and cost effective manner. ODR essentially involves use of Information and Communication Technology (ICT) to achieve its purpose. Further, ODR also requires a sound Legal Framework that can support the modalities of ODR.

There is no dedicated Legal Framework for Online Dispute Resolution in India (ODR in India). Although some hints can be picked from the sole Cyber Law of India, as incorporated in the Information Technology Act, 2000 (IT Act, 2000), yet these random and selective provisions cannot sustain a sound, robust and long term ODR System in India.

If a casual Legal Framework is enough, then we do not even need the IT Act, 2000 for ODR purposes in India. We can pick any law, give it a Purposive Interpretation and claim that we have a Legal framework for ODR in India. The truth is that India has no Legal Enablement of ICT Systems in India. Even we do not have International Legal Standards for Online Dispute Resolution.

Absence of Legal Enablement of ICT Systems in India is the main reason that we are still waiting for the establishment of First E-Court of India and birth of ODR in India. Despite all contrary claims, India is still not ready for E-Courts and ODR as we lack Techno Legal Expertise to handle these ambitious Projects.

Another factor that has resulted in lack of growth of ODR in India is “Inadequate and Inappropriate Representation” of India at International Platforms, Organisations and Institutions. For instance, the United Nations Commission on International Trade Law
(UNCITRAL) has almost nil representation from India.

None of the ODR Service Providers of India are part of UNCITRAL ODR Initiatives. Naturally, India cannot have people or institutions that would help in achieving “International Harmonisation” regarding ODR from India’s side.

This “Missing Link” between UNCITRAL, ODR and India need to be bridged before India can effectively be a part of International ODR Community.

If India claims that it can, and would, use ODR for speedier dispute resolution or as a method of Alternative Dispute Resolution (ADR) Mechanism, this would an “Over Ambitious” statement far from ground realities existing in India. Even the National Litigation Policy of India (NLPI) is silent on aspects of E-Courts and ODR.

We have to remove various Obstacles and Roadblocks, especially those raised by Legal Framework, before ODR can succeed in India. Presently, that seems to be a tough task as there is no hint of the same. I prefer to keep my fingers crossed.