Negotiation: The most common form of dispute resolution is negotiation. By this means alone nearly all disputes are solved. If negotiations fail, it is necessary to seek the assistance of a neutral third party or several neutral third parties to facilitate a solution.

Mr. Christopher To, Secretary General of Hong Kong International Arbitration Centre HKIAC, video:

Arbitration: For an arbitration to take place, the disputing parties must agree to take their dispute to arbitration. In practice, this agreement is often made before the dispute arises and is included as a clause in their commercial contract. In signing a contract with an arbitration clause, the parties are agreeing that their dispute will not be heard by a court but by a private individual or a panel of several private individuals. If parties have agreed to arbitration, they will generally have to go to arbitration rather than court as the courts will normally refuse to hear their case by staying it to force the reluctant party to honour their agreement to arbitrate.

Arbitration is a legal process which results in an award being issued by the arbitrator or arbitrators. Arbitration awards are final and binding on the parties and can only be challenged in very exceptional circumstances. An award has a status very like a court judgment and is enforceable in a very similar manner. Arbitration awards made in Hong Kong are enforceable through the courts of most of the world’s trading nations.

Litigation: In the absence of an arbitration agreement or other consensual means of dispute resolution, the parties may commence proceedings in the courts. Litigation in Hong Kong courts is handled very competently. The decision of the Court of First Instance is not, however, final as an aggrieved party has an automatic right of appeal to the Court of Appeal and if the amount in dispute exceeds HK$1,000,000, they have an automatic right of appeal from the Court of Appeal to the Hong Kong Court of Final Appeal.

Online Arbitration in Hong Kong International Arbitration Centre HKIAC

The Hong Kong International Arbitration Centre HKIAC places great emphasis to providing online dispute resolution services in a wide variety of areas including the areas of intellectual property and information technology. Thus it is fitting that the Hong Kong International Arbitration Centre HKIAC has set as one of its goals to be one of the leaders among online dispute resolution providers in regard to domain names and E-Commerce.

The Hong Kong International Arbitration Centre HKIAC provides online dispute resolution services in the following ways:-

Dispute Resolution Service for Domain Names:

1. Dispute Resolution for gTLDs (for example: .com, .net and .org etc) – (UDRP)
As a partner in and manager of the Hong Kong Office of in the Asian Domain Name Dispute Resolution Centre which is one of the four domain name dispute resolution providers approved by the Internet Corporation for the Assigned Names and Numbers (ICANN) to provide domain name dispute resolution services in regard to generic top level domain names (gTLDs) such as .com, .net and .org. Disputes in regard to gTLDs are carried out under the Uniform Domain Name Policy (UDRP) issued by ICANN. Dispute Resolution for gTLDs

2. Dispute Resolution for ccTLDs (for example: .hk, .cn , .pw and .ph etc)
a. The Hong Kong International Arbitration Centre HKIAC is the sole provider of dispute resolution services in regards to .hk domain names, having been appointed for such purpose by the Hong Kong Domain Name Registration Company Limited (HKDNR). Mandatory final and binding arbitration is the method chosen by HKDNR for the purpose of resolving disputes in regards to .hk domain names. Dispute Resolution for .hk
b. The Hong Kong International Arbitration Centre HKIAC has been appointed by the China Internet Network Information Center (CNNIC) to resolve .cn domain name disputes. Dispute Resolution for .cn
c.The Hong Kong International Arbitration Centre HKIAC was appointed by the .pw Registry Corporation as the sole .pw Domain Name Dispute Resolution Service Provider. Dispute Resolution for .pw
d.The Hong Kong International Arbitration Centre HKIAC was recently appointed by the .dotPH – the Official Domain Name Registry for Philippines to resolve .ph domain name disputes. Dispute Resolution for .ph

3. DotAsia Sunrise Challenge Policy.

The Hong Kong International Arbitration Centre (HKIAC) is the global official dispute resolution provider to handle disputes and challenges arising out of the launch of the .Asia domain.

Dispute Resolution for Registrar Transfer (TDRP)

The ADNDRC has started to handle Registrar Transfer Disputes under the ICANN Registrar Transfer Dispute Resolution Policy since 11 December 2004. Dispute Resolution for Registrar Transfer Disputes.

Dispute Resolution for Internet Keyword

The Hong Kong International Arbitration Centre HKIAC has been appointed by the CNNIC as a provider to handle Internet Keyword Dispute under CNNIC’s Internet Keyword Dispute Resolution Policy. Dispute Resolution for Internet Keyword Dispute.

Dispute Resolution for E-Commerce – HKIAC Webtrust Programme

Webtrust Programme is a third party arbitration framework for the use and adoption by on-line merchants to handle consumer disputes on-line. It is jointly promulgated by the HKIAC and the Hong Kong Institute of Certified Public Accounts in January 2002. The HKIAC is the administrative organisation of that programme, responsible for administering the Programme and appointing of arbitrator. The HKIAC Electronic Transaction Arbitration Rules was adopted as the rules for the arbitration process of that programme.

In order to facilitate the efficient and speedy disposition of domain name disputes, the HKIAC, with technology powered and supported by the Tradelink Electronic Commerce Ltd., has developed a proprietary on-line dispute resolution system for gTLD and hkTLD, which permits parties to conduct their domain name dispute cases by means of a sophisticated fully on-line web-based system.

More information: Hong Kong International Arbitration Centre HKIAC.

China‘s top legislature started to read the draft law on labor dispute mediation and arbitration amid an increasing number of labor disputes that emerged in the country. The draft law was submitted Sunday to the seven-day 29th session of the Standing Committee of the National People’s Congress (NPC), or China’s top legislature, for the first reading. Arbitration in labor dispute cases will be important because in China are continuously increasing in recent years. Statistics show that labor dispute arbitration organizations at various levels dealt with 1.72 million labor dispute cases involving 5.32 million employees from 1987 to the end of 2005, with a growth rate of 27.3 percent annually.

Xin Chunying, vice Chairman of the Legislative Affairs Commission of the NPC Standing Committee said on the legislative session that excepting the increasing number of labor disputes, other problems also exist. For instance, the personnel in arbitration organizations are not professional and thus lack credibility and the process of arbitrating labor disputes is long, making the cost of arbitration high.

China resumed the labor dispute arbitration system in 1987 and formed the procedures for coping with labor disputes as “mediation, arbitration and trial” after the regulation on handling corporate labor dispute and Labor Law were promulgated in 1993 and 1994. The procedure and practice for dealing with labor disputes have been widely accepted by the public.

The draft bill is for strengthening mediation and improving arbitration so as to help fairly solve labor disputes without going to court and thus safeguard employee’s legitimate rights and promote social harmony. The draft bill said corporate itself is entitled to establish labor mediation committee to solve the labor disputes occurred in its own corporate so as to solve disputes at grassroots level. The corporate labor mediation committee should consist of employees and representatives of managerial level. When labor disputes occur, litigants can turn to the corporate mediation committee, or grassroots people’s labor disputes mediation organization, the draft bill said.

The draft bill said labor disputes concerning pay, medical fee of job-related injuries, compensation, pension whose relevant sum do not exceed 12 months of local minimum monthly wages could be solved by arbitration. The arbitration documents have legal effects upon being handed out. Labor disputes on working time, holidays, social insurance and collective contracts could also be solved by arbitration with legal effects, said the draft bill.

World of Arbitration In a civilised society, citizens look to the courts to settle their disputes. The courts put judges at the disposal of the parties, the courts determine the substantive and procedural law which is to be applied and the courts enforce their own orders through court officers, when necessary. It is a one-stop shop.

For those engaged in alternative dispute resolution – ADR, the courts are available not merely to enforce decisions and awards but also to supervise and control the chosen ADR procedures, should matters go awry.

Where disputes arise in the international arena, the picture is a little different because national courts are rarely acceptable to both sides. Disputes between states or between an individual and a foreign state or between an individual and an international organisation may be regarded as being in a special category, where the aggrieved party may have recourse to treaty arbitration. Examples are arbitration before the PCA1 and arbitration under the auspices of ICSID2. Beyond that special category, the parties must make express provision for dispute resolution in their agreement, failing which the aggrieved party will be left to seek his remedy from the domestic courts of one country or another, depending upon which will assume jurisdiction.

The result is a contrast. Whereas national courts often represent a convenient and acceptable means of dispute resolution for parties to a dispute which has no international element, there is no international equivalent. In consequence, most international disputes fall to be resolved through a process or by a tribunal which is essentially consensual in origin.

This paper is concerned with the resolution of disputes arising under international construction contracts. The purpose is to survey the available alternatives and to identify some of the considerations to be borne in mind by those concerned. In this last context, the emphasis is on two key considerations, being enforcement and applicable law.

Enforcement

It is convenient to note at this stage that there is more than one aspect to enforcement. Thus, we may distinguish between enforcement in the sense of ensuring implementation of the chosen disputes resolution procedure, on the one hand, and enforcement in the sense of giving effect to the resulting award or decision, on the other.

There are various conventions which bear upon enforcement. However, on the international stage, it is the New York Convention which is of most significance. Replacing the Geneva Convention of 1927, the New York Convention provides a simple and effective method of obtaining recognition and enforcement of foreign arbitral awards. By Article II, Contracting States agree to recognise arbitration agreements in writing and undertake that their courts, if seized of an action in respect of which the parties have made an arbitration agreement in writing, will, in principle, refer the parties to arbitration. Further, By Article III, awards made in the territory of a Contracting State, provided that they are made pursuant to an arbitration agreement in writing, are to be recognised and enforced by another Contracting State. Limited grounds for refusal of recognition and enforcement are set out in Article V. These are as follows:

Article V(1) (Conflict with the law of the State where the award was made or where the arbitration proceedings took place)

1. Incapacity of parties and invalidity of arbitration agreement.

5. Award not yet binding or already set aside or suspended.

Article V(2) (Conflict with the law of the State where recognition or enforcement is sought)

1. Dispute not capable of settlement by arbitration.

2. Recognition or enforcement contrary to public policy.

In applying such grounds for refusal of enforcement, it is customary for the courts of contracting states to allow a margin of appreciation in recognition of the fact that the award was made in another jurisdiction. For example, although ad hoc arbitration agreements are void under the PRC Arbitration Act 1995, the courts of the PRC have nevertheless chosen to enforce arbitration awards rendered by ad hoc tribunals in foreign jurisdictions, rather than invoking the public policy ground set out in Article V(ii)(b)5.

Applicable Law

The second key consideration concerns the applicable law. It is in the context of arbitration that the need to ascertain the applicable law is most acute. It has been said that, without undue sophistication, there are at least five different systems of law which may have a bearing on an international commercial arbitration6. Allowing for the fact that this paper is concerned not only with arbitration but also with other forms of ADR, the five may be expressed as follows:

1. The law governing the parties’ capacity to enter into an dispute resolution agreement;

2. The law which governs the dispute resolution agreement and its performance;

3. The law which governs the existence and proceedings of the mediator, conciliator or tribunal – sometimes known in the context of arbitration as the lex arbitri;

4. The law governing the substantive issues in dispute, generally described as the applicable law, the governing law, the substantive law or the proper law of the contract;

5. The law governing recognition and enforcement of the award or decision (which may in practice be more than one, if the attempt to enforce has to be made in more than one jurisdiction).

Having noted above a distinction between enforcement in different senses, it is to be observed that enforcement in the sense of ensuring implementation of the chosen disputes resolution procedure is governed by the law at (2) above, whilst enforcement in the sense of giving effect to the resulting award or decision is governed by the law at (5).

Mediation and Conciliation

The parties to an international dispute may embark on mediation or conciliation. If they do it will either be because the contract calls for it or because they have agreed to do so on an ad hoc basis. Various institutions involved in international dispute resolution have published protocols providing for mediation or conciliation, such as the ICE7, the ICC8, the LCIA9 and the HKIAC10.

Since such procedures depend largely for their success upon the parties reaching consensus, the fact that the dispute has an international element tends to have relatively little bearing on the proceedings, save that, for one party or the other (and perhaps both) the applicable substantive law may be foreign. However, the international element cannot wholly be overlooked. Those involved will wish to bear in mind the effect of anything said and done in the context of a mediation upon any subsequent means of dispute resolution to be undertaken if the mediation fails. For example:

1. The privilege against disclosure and production of documents which common lawyers associate with the epithet without prejudice is unknown in Greek law. Accordingly, if the ultimate arbitration is to be conducted according to Greek procedural law, the parties to any mediation process should be aware that any documents disclosed may ultimately come to the attention of the arbitral tribunal even if the parties purport to conduct the mediation on a without prejudice basis.

2. Parties who succeed in settling their dispute in mediation do well to include in the settlement agreement not only a term which identifies the law which governs the settlement agreement itself but also a term (if it can be agreed) to the effect that in the event of dispute both parties agree to submit to the jurisdiction of a particular national court.

It may also be necessary to have the law applicable to enforcement in mind when considering the possibility of dispensing with mediation even though it is expressly provided for. Thus, if the disputes resolution procedure laid down by the contract makes mediation a condition precedent to arbitration, the party who fails to cooperate in mediation may do so at its peril. The court from whom enforcement is sought might decline to do so under Article V of the New York Convention, either upon the basis that the arbitral procedure was not in accordance with the agreement of the parties (Article V(1)(d)) or on the basis that enforcement would be contrary to public policy (Article V(2)(b)).

A similar problem might arise in with the process sometimes known as “Med-Arb”. In, for example, the PRC an arbitral tribunal may well find itself acting as mediator and conciliator. In that jurisdiction, there is no objection to the tribunal subsequently resumed its arbitral function, provided that the award is rendered promptly. But, whereas such a procedure would be regarded as quite normal in the PRC, it might not be seen in the same light elsewhere. Accordingly, there is a risk that if enforcement were sought in some other jurisdiction, it might well be resisted under the New York Convention on public policy grounds.

Disputes Boards

For a project of any size involving contracting parties of different national origins, the contract which provides for the interim resolution of disputes on referral by a Disputes Board11 is now the rule rather than the exception. The rules under which such a body operates tend to vary from project to project. However, a degree of standardisation has been introduced as a result of the publication of standard rules both by the ICC12 and by FIDIC13.

Typically, the Disputes Board is appointed at the commencement of the project; its members are required to visit the site periodically and to familiarise themselves with the works; disputes come before the Disputes Board only upon referral by one or other of the parties; and the Disputes Board’s decision (or “recommendation”) binds the parties, subject to review by an Arbitral Tribunal (or, more rarely, by the courts).

Once again, the international element of the dispute tends to have little bearing on the proceedings conducted before the Disputes Board. However, practitioners still need to take into account the effect of different systems of law. Thus:

1. The enforceability of the Disputes Board procedure will be governed by the law which governs the disputes resolution provisions generally.

2. The enforceability of the Disputes Board’s decision will be governed by the law of the state in which enforcement is sought.

Let it be supposed that a substantial infrastructure is part complete when a dispute over valuation arises, leading the contractor to issue a threat to suspend all work on the relevant part of the project unless its demands for payment are met. Let it be supposed further that the employer then seeks injunctive relief to restrain the contractor from carrying out its threat. The contractor maintains that the court ought to decline jurisdiction in favour of the Disputes Board constituted in accordance with the Disputes Resolution provisions. The issue for the court is whether or not to enforce the contractual procedure. Many will recognise these as the outline facts of the Channel Tunnel case14. As is well known, the House of Lords preferred to enforce the contractual disputes resolution procedure. In doing so, it may be regarded as having applied the law governing the dispute resolution agreement and its performance.15

The moral of the tale is that the practitioner should keep well in mind the likely attitude of the courts in the state in which enforcement action might be taken.

Treaty Arbitration

The PCA situated at The Hague was established by the Convention for the Pacific Settlement of International Disputes included at The Hague in 1899 and revised in 1907. Where the relevant state is a party to one or other of the two Hague Conventions, a dispute may be referred to the PCA where at least one party is a state, state entity or an intergovernmental organisation.

ICSID was established by the Washington Convention of 1965,16 better known as the ICSID Convention. It gives both private individuals and corporations who are “investors” in a foreign state the right to bring legal proceedings against that state before an international arbitral tribunal. “Investors” in this context include a foreign contractor implementing a construction project in the territory of the state in question. Here, the source of authority to arbitrate is a bilateral investment treaty. For the contractor who qualifies as an “investor”, this offers the opportunity to institute proceedings before an international Arbitral Tribunal administered by ICSID in Washington. The advantages to the “investor” are that there is no fear of the outcome being influenced by the Respondent state as there might be if the dispute could only be litigated or arbitrated within the borders of that state. Furthermore, state immunity is much restricted.

A full review of ICSID arbitration is beyond the scope of this paper. However, a particular problem to be noted is that which can arise where the underlying construction contract itself provides for the arbitration of disputes. In such a case, what sometimes appears to be a contest between two tribunals can arise in the event that one party purports to refer to a dispute to the contract tribunal, whilst the other purports to refer the same dispute to a tribunal constituted by ICSID.17

Arbitration pursuant to Agreement

Turning to arbitration pursuant to agreement, there is a distinction between an arbitration agreement incorporated into the contract at the outset and an arbitration agreement which is concluded ad hoc. But, either way, the threshold questions concern what is agreed or provided for as to the constitution of the Tribunal and what procedural law is be applied.

Parties commonly agree that the dispute is to be arbitrated in accordance with specified institutional rules such as those of UNCITRAL,18 the ICC,19 the Stockholm Chamber of Commerce,20 the HKIAC,21 CIETAC,22 SIAC23 and the Swiss Chambers of Commerce.24 In such a case, these threshold questions are likely to be provided for, if not agreed.

Where the parties do not adopt institutional rules, matters such as the constitution of the tribunal and the choice of procedural law fall to be settled in the event of dispute by the courts of the state in which the arbitration takes place. In English law, the approach would be to resolve such disputes by reference to the law which governs the arbitration agreement.

Thus, in the Star International case,25 the contractual arbitration clause was silent as to the procedural rules to be followed. After the award had been published, the unsuccessful party sought to challenge it on the basis that no oral hearing had been held. The court, applying English law, held that the absence of a hearing did not amount to unfairness and declined to interfere with the award.

Once the tribunal has been constituted and the procedural rules identified, practitioners are likely to find it necessary to refer to any one or more of a number of different systems of law.

Let it be supposed, for example, that the claimant seeks interim conservatory relief, perhaps an order that an area of allegedly defective flooring be preserved so that forensic tests can be conducted. In the first instance, there is a question whether the tribunal has jurisdiction to make such an order. The answer to that question will depend on the lex arbitri. In many cases, institutional rules expressly confer jurisdiction upon the tribunal to make such an order. Beyond that, if the tribunal does make an order, there is a question whether the local court should enforce it. The answer to that question will depend in part on the lex arbitri, in that the court would be unlikely to enforce an order made without jurisdiction. But it may depend also on the law of the state in which enforcement is sought. In the PRC, for example, it is unlikely that such an order would be enforced, since it seems that it is only the court which is regarded as having power to order interim relief.

Then again, let it be supposed that, following publication of the award, the losing party seeks to challenge it. The question whether or not the award can be challenged may depend in part on the lex arbitri. Thus, for example, the ICC Rules are regarded at least in England and Wales as excluding appeals26. But if the institutional rules are silent on the point, the question of challenge may depend on the law of the place of the arbitration. So, if such a situation were to arise in a case where the arbitration took place in, say, South Korea, the court would be likely to assume jurisdiction to set aside the award on grounds similar to those given in Article V of the New York Convention for refusing enforcement, provided that an order for enforcement has not already been made.27

In the same way, there are a number of circumstances in which the practitioner will wish to have in mind not only the lex arbitri but also the law of the state in which the arbitration takes place. These include where a party seeks to restrain the tribunal from proceeding at all, where a party seeks security for costs,28 where a party seeks to sub-poena witnesses; where a party seeks an order for disclosure of documents from a non-party; where a party seeks to challenge an award for lack of due process,29 and so on.

Discusion about this paper in Keating Chambers – United Kingdom – International Dispute Resolution website:
Article by John Marrin QC
United Kingdom: International Dispute Resolution.

http://www.mondaq.com/article.asp?articleid=44022&searchresults=1

Kieran Flatt asks Alan Connarty, director of operations at the Chartered Institute of Arbitrators, why his organisation is championing the cause of electronic dispute resolution in some cases.

In many of these disputes, the opposing parties may have very little to do with the UK. Alan Connarty, director of operations at the Chartered Institute of Arbitrators (CIArb), says that England and Wales and specifically, London gets the business for three reasons: the efficiency of the process, trust in the local law and trust in the local law firms. But has he not heard the frequently voiced assertions that London risks losing business to more modern or dynamic jurisdictions Is this overstatement or fact

“It is a bit of both,” Connarty says. “Some of what is said on the subject is wild rumour. In the Far East technology is marching steadily onwards but I would hesitate to say that London is dragging its heels. It is true that some countries have modernised very rapidly and they are now going out to promote their jurisdiction as a convenient venue for both online and regular types of arbitration.”

So does CIArb disapprove of this behaviour No, Connarty says: “We encourage it very strongly. While we recognise the value of London we also support the sensible use of IT.”

In arbitration centres such as London, Rotterdam and Hamburg, CIArb would like to see more use of video conferencing and more commitment to electronic document management as a means of supporting mediation and arbitration.

Only in the past 12 months has CIArb begun to see the use of video conferencing for commercial disputes in London. “Video conferencing provides an opportunity for witness statements,” he says. “It enables an understanding by both parties of exactly what a witness has said.”

CIArb would also like to see the introduction of virtual courtrooms and is enthused by the work carried out by Court 21, a Leeds-based project linked to the citys university. Connarty describes the project as “very promising indeed”. Some of Court 21s work is expected to bear fruit in the next six months, with real, live dispute resolution systems on the market. Connarty expresses the hope that Court 21 will provide an integrated, end-to-end solution that can realistically be used for online mediation.

He also commends Lloyds for putting some of its open form shipping disputes into online resolution systems to cut costs and improve procedures. “This sort of dispute lends itself well to online resolution,” Connarty says. The American Arbitration Association (www.adr.org) has also gone online, setting up an office in Dublin for maritime arbitration, which uses an online procedure. Connarty says that even its detractors have to admit that the move “has provoked people to start thinking” more seriously about online dispute resolution.

In the US itself, there are several online technologies and video conferencing solutions used for arbitration and mediation. Taking these from a regional to a national level will be the next step forward for them, Connarty says. He adds that business in the US seems far more e-enabled than in Europe. “Traditionalists, and there are many in London, say they have not seen any demand for online arbitration,” he adds. “However, online dispute resolution is viable in the UK and most legal aspects can be addressed in English law.”

According to Connarty, online is shorthand for “cheaper and quicker”. “When law firms are talking to their clients, they should be offering them a variety of different forms of ADR,” he says. CIArb has estimated that in about 10% of cases, where it has been offered, clients have favoured the online option. Business, quite surprisingly, has been rather reluctant to use it.

Connarty sees the real challenge as persuading the parties to be more active in their use of modern facilities. “We are seeing a mix of participation,” he says. “For law firms and their clients, the challenge is to start using the internet as a communication tool for resolving disputes. Their concerns should be: is it confidential and private; is it secure I have seen no evidence to suggest that it is not.”

Source: Legal IT – online IT magazine”

“While daily filings with WIPO are less now than in the early days of the UDRP, we need to continue our efforts to ensure that the rights of legitimate trademark owners are not diluted,” said Mr. Francis Gurry, Deputy Director General of WIPO, who oversees the work of the Center. “Reducing the practice of cybersquatting is an important element in enabling the Internet to develop as a secure and reliable environment which inspires confidence on the part of the ever-growing number of Internet users,” he observed. “The fact that over 80 percent of the WIPO expert decisions went in favor of the trademark holder, be it a large multinational corporation or a small or medium-sized business, underlines the bad faith inherent in this practice,” Mr. Gurry further noted.

In 2003, the Center received 1,100 UDRP cases, averaging 3 cases per calendar day, similar to the daily filing rate during the previous year. While this is clearly an improvement compared to the 5 daily filings the Center received in the early days of the UDRP, it remains significant.

In addition to famous brands (recent WIPO cases include the domain names pepsi-smash.com, calvinklein-watches.com, rolexgroup.com), celebrities continue to be targeted by cybersquatters. Often their winning cases were based on common law rights in their names rather than on a registered trademark. In 2003, the Center received cases relating to movies, authors and books (jrrtolkien.com, thecatinthehat.com), pop stars (nsyncfilm.com, utadahikaru.com), television shows (oscartv.com, operaciontriunfo.tv), and movie stars (piercebrosnan.com, victoriarowell.com). Sports personalities (terrellowens.com) and sporting events (torino2006.net, madrid2012.org) were also the target of cybersquatters.

Companies involved in recent or prospective mergers also fell prey to cybersquatters. The Center has recently dealt with cases involving domain names such as yellowroadway.com, japanairgases.com, konicaminolta.net, astrazenica.com, which were all newly created following recent or predicted mergers.

The UDRP, which was proposed by WIPO and accepted as an international standard for resolving domain name disputes, is designed specifically to discourage and resolve the abusive registration of trademarks as domain names. Under the UDRP, which became effective in December 1999, a complainant must demonstrate that the disputed domain is identical or confusingly similar to its trademark, that the respondent does not have a right or legitimate interest in the domain name and that the respondent registered and used the domain name in bad faith.

A few facts

- In 2003 the Center dealt with 56 cases involving country code top-level domains (ccTLDs), a 40 percent increase over the previous year. Cases dealt with by the Center have included the domain names bodyshop.as, nutella.bz, amazon.com.cy and yahoo.ph. The Center now provides services for disputes in 36 ccTLDs, including .au (Australia), .mx (Mexico) and .nl (Netherlands). The Center was further designated to provide services under a new dispute resolution procedure which is to apply to the Swiss .ch domain as of March 1, 2004.

- The Centers experts are frequently called upon to decide cases that involve high-value brands. The WIPO Center so far has resolved cases involving 66 of the 100 largest brands by value, including 7 of the top 10 such brands (Interbrand Brand survey 2003).

- The Centers services are multinational and multilingual. So far, parties to WIPO UDRP disputes have come from 116 different countries. In 2003, the Center added three languages (Dutch, Italian and Russian) to the nine case languages it has used to date, namely, Chinese, English, French, German, Japanese, Korean, Norwegian, Portuguese and Spanish. Domain names themselves may also be presented in different scripts, such as Chinese, Cyrillic or Korean. The Center has handled 36 such “multilingual name” disputes so far, with further growth expected.

- All domain name decisions handled by the Center are fully indexed and published on the Centers web site (http://arbiter.wipo.int/domains/search/index.html).

- In addition to its domain name activities, the WIPO Center is increasingly called upon to provide arbitration and mediation services for all types of intellectual property disputes, such as disputes involving patent, trademark or copyright licensing. For this purpose, the WIPO Arbitration and Mediation Center makes available model arbitration and mediation clauses which can be downloaded from its web site at “http://arbiter.wipo.int/arbitration/contract-clauses/index.html”.

For further information about all the activities of the Center, please visit the Centers web site at “http://arbiter.wipo.int”

Despite the dot.com bust, the future of Internet commerce (e-commerce) still looks rosy. According to recent studies, it is now projected that by 2005 one billion people will be on the Internet and at least one third will make online purchases. What is even more remarkable is that this huge, $1.6 trillion business will be based essentially on trust, among sellers and buyers who are unlikely to ever see or speak to each other.

Inevitably, some of those e-commerce transactions are bound to turn into disputes. So what happens when a seller in the USA and a buyer in Russia disagree over a sale transaction worth only a few hundred dollars? What recourse do they have, when litigation, Small Claims court and arbitration are obviously not feasible options?

More and more online merchants are realizing that, if trust is indeed such a critical factor in e-commerce, having reliable products, clear return/refund policies and a multi-language web site may not be enough. It is far more effective if worldwide customers are reassured that, if they have a disagreement with the seller, they can get it resolved through an independent, neutral and inexpensive dispute resolution process.

Ebay has already proven how this can be done. With more than four million auctions daily, eBay is the world’s largest online auction. When sellers and buyers throughout the world have a dispute, they are referred to Square Trade, an independent ODR (Online Dispute Resolution) company based in San Francisco. A Square Trade trained mediator assigned to the case then gets in touch with both parties and helps them negotiate a mutually acceptable settlement. The purpose of mediation is not to determine which party is right or wrong, but to help seller and buyer answer one simple question: How can your case be resolved in a way you can both live with?

The entire mediation process takes place by email, and neither the mediator nor the parties need to be online at the same time. Therefore, parties can read and respond to the mediator’s messages whenever they want: after a few minutes, hours or even days.

As a Square Trade mediator, I have mediated over 900 eBay cases, with parties across the USA, Europe, Asia, and transactions worth anywhere between one penny and $35,000. All cases have fundamentally the same features. There are some substantive, tangible issues (like money, products, refunds, etc.); and there are also intangible issues (like the buyer’s need to feel heard and respected), which can often be resolved just with an apology.

Interestingly enough, the settlement rate achieved through online mediation is similar to the settlement rate achieved in face-to-face mediation in Small Claims courts. In other words, it does not really matter whether seller and buyer know each other since they live in the same city, or are total strangers because they live in different countries. What matters most is that both parties feel equally empowered by a neutral process that does not favor one party over the other, and gives them total control on its outcome.

Giuseppe Leone is a Square Trade online mediator and MCP mediator for Hawaii Small Claims courts. mediationplus@yahoo.com

Year 2003