Docstoc

Alternative Dispute Resolution

Document Sample
Alternative Dispute Resolution Powered By Docstoc
					  Alternative Dispute Resolution
               (ADR)
Building Capacity and Expertise in Africa



              Neil Dundas
              South Africa - ZA
                        BACKGROUND
                                   Ref: Bitlaw.com


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 their
products can be an extremely valuable part of establishing an Internet presence
(local and international). A company wishing to acquire a domain name must file an
application with the appropriate agency (ccTLD). Before doing so, a search is done to
see if their desired domain name is already taken. 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: (1) choose a different name; or (2) fight to
get the domain name back from its current owners.

                                [Dispute Origination]
                         BACKGROUND
                                    Ref: Bitlaw.com


When a dispute over a domain name occurs the parties can always turn to the courts.
While courts and judges have the authority to award control and ownership over
domain names (just as they have authority to award control and ownership over any
other property), the judicial process is notoriously slow (and prohibitively expensive).
Consequently, many parties have avoided the courts and turned to the domain name
dispute policies of the domain name registrars (ccTLD).

                       [Argument for ADR to be implemented]

                      Important: intended for the protection of:
                           (1) The Trade Mark proprietor;
                         (2) The domain name Registrant;
                            (3) The domain administrator
           BACKGROUND
UDRP
1999


       Nominet DRS
       2001
                  Auda DRP
                  2002

                             DNC DRS
                             2006
                                       .ZA ADR
                                       2007
African ccTLDs who have introduced a domain
name Alternative Dispute Resolution (ADR)
procedure .
- (mostly a UDRP variant)
AFTLD members who do not have an ADR
mechanism.
                     The AFTLD ADR Proposal
                        [Primary Objectives]
                                   to be run concurrently



•   To assist its members and other African ccTLD administrators to adopt
    and implement a suitable ADR mechanism for their ccTLD.

•   To develop capacity and expertise within the local and regional IP / ccTLD
    community so that local experts (adjudicators) can participate in (and
    contribute to) the process.

•   To collect and coordinate regional feedback so that this could be fed into
    other regional and international structures (IPC / ICANN).
                        The AFTLD ADR Proposal
                        Adoption & Implementation
•   Policy & Procedure: Develop a generic policy and procedure and present
    this to members for comment and approval. Adoption by AFTLD Executive
    Committee.
•   Provider: Appointment of DR Provider (SAIIPL)
•   Implementation: Assist interested members and African ccTLD
    administrators to implement the policy and procedure into their existing
    structures.
     •   Contractual adoption of Policy and Procedure and agreement to be bound to decisions
     •   Selection of local Adjudicator Panel
     •   Implementation of ccTLD profile onto ADR provider system
     •   Implementation of ADR mechanism on ccTLD system
     •   Implementation of Policy and Procedure into Registrant Agreement
•   Refinement: Ongoing refinement of procedures and information (FAQs,
    templates etc.)
•   Reporting: Ongoing Reporting and Feedback
                The AFTLD ADR Proposal
           Developing Local Capacity & Expertise

•   Local Adjudicators: Identify suitable local candidates who are prepared to
    serve as adjudicators.
•   Ranking: Determine ADR expertise and experience of adjudicator with the
    intention of ranking adjudicator onto ADR system.
     •   Ranking determines whether an adjudicator can handle matters independently (senior) or
         whether further training and exposure is required (trainee)
•   Engagement: Engage adjudicators into shared system / platform
     •   To facilitate awareness and communications
•   Capacity Building: Training and Skills Development
     •   Initially tagging along with AFLTD meeting, and have specific ADR skills workshop
     •   Circulate decisions, procedure determinations and stats
     •   Encourage participation through publishing (request for papers)
     •   Arrange and coordinate annual ADR workshop/s, including exposure to international skills &
         expertise.
•   Decision Quality: Monitoring decision / precedent uniformity and quality.
    Mentorship.
                   The AFTLD ADR Proposal
                         Coordination

•   Once established and representative of the region, to coordinate and
    arrange the ADR community so that it can provide feedback, comment
    and/or assistance to AFTLD, ICANN and other representative
    organisations.
                                Generic Solution

bi ( Burundi )
ci ( Cote d'Ivoire )
eg ( Egypt )
ke ( Kenya )
ly ( Libya )
mg ( Madagascar )      Generic Policy and
mr ( Mauritius )          Procedure
mw ( Malawi )
mz ( Mozambique )            +
ng ( Nigeria )          Generic Panel
sc ( Seychelles )
sd ( Sudan )
tz ( Tanzania )
za ( South Africa )
Etc.
                       Localising the Policy and Panel

bi ( Burundi )
ci ( Cote d'Ivoire )
eg ( Egypt )
ke ( Kenya )
ly ( Libya )
mg ( Madagascar )                                                  Operational MOU:
mr ( Mauritius )                                               +   • whois
mw ( Malawi )                                                      • implementation
mz ( Mozambique )
ng ( Nigeria )
sc ( Seychelles )                                Local Panel
sd ( Sudan )
tz ( Tanzania )                              +
za ( South Africa )
                            Adopted Policy
                            and Procedure
Illustrative Case Flow


    .tz (Tanzania)
    ccTLD




                                                   +
                                       TZ Policy
                                                       .TZ Panel
                                          and
                                       Procedure

   Registrant




                         Complainant
                        The AFTLD ADR Proposal
                              Challenges

•   Language (ultimate translation into mainstream African languages)

•   Costs (sponsorships & funding for delegate travel and workshop attendance,
    international speakers, implementations, translations etc.)


•   Awareness (require ccTLD assistance to promote local awareness)

•   Involvement (keep process dynamic so that regional ADR interest is maintained)
                          The AFTLD ADR Proposal
                                  Benefits
•   Short Term: Addresses short term demand for ADR and promotes
    regional cooperation.

•   Capacity Building: Develops longer term expertise within region (builds
    capacity)

•   Legitimacy: Provides further legitimacy to ccTLD and AFTLD (shows
    progressiveness)

•   Growth: Involvement of further interest groups (i.e. legal community etc.) into the
    ccTLD environment could result in dynamic growth within that ccTLD as the legal
    community are normally called upon to provide first-line advice to both foreign and local
    businesses interests.
     •    We have seen this in SA, where the ccTLD community has matured by engaging domain name
          interest groups, beyond just the technical community. A practical implication of this is that Trade
          Mark agents and practitioners have actively encouraged their customers to secure their
          proprietary names as corresponding ‘local’ domain names.
.tz   .bi   .ke   .za   .ng   .mw   .mg
.tz   .bi   .ke   .za   .ng   .mw   .mg
Backend




          Opening a new Case:
Backend




          Unassigned Case
Backend




          Assigning a
          Case to an
          Adjudicator
Backend




          Adjudicator must upload and
          classify Decision. Assigned
          back to the Administrator for
          Activation.
Correspondence
THANK-YOU