Principles for the Alternative Dispute Resolution (ADR) Committee
The ADR Committee is an independent body established against the background of the Domain Regulation to provide a rapid, low-cost and simple alternative for dispute resolution in the more clear-cut domain conflicts. To fulfil the requirements for rapid and low-cost processing, the ADR Committee operates within a restricted framework, and more complex domain disputes must thus still be handled by the judicial system.
The current policy and registration procedures do not require applicants to document a right to the domain name for which they are applying. The applicant signs a declaration form in which he or she affirms that the domain name does not entail wrongful infringement of a third party’s registered or unregistered rights to the name and does not violate Norwegian law, but Norid does not check this.
The domain name policy was established after a public inquiry during the second half of 2000. Contributions to the inquiry showed that the Internet community in Norway wants a domain name policy which emphasizes flexibility for the applicants as well as fast and low-cost processing of applications, rather than expensive checking in advance which also requires more time. These suggestions were implemented. A consequence of the current policy is that any cases in which registration of a domain name represents an infringement of other parties’ rights must be handled after the name has been registered. To provide an alternative for dispute resolution which was faster and cheaper than bringing the case before the courts, an alternative dispute resolution Committee for hearing domain disputes was therefore created in 2003.
Principles for the dispute resolution system
The overarching principles for the dispute resolution system are that decisions should be as correct as possible, processing should be rapid and reasonably priced, and the system should be trustworthy and show consideration, taking both partiesâ interests into account. However, rapid processing at a moderate cost may well be at the expense of the protection accorded by the law. The parties must therefore have the opportunity to bring the case before the courts for a more extensive hearing should one of the parties desire this.
Taking the protection of the law into account
It is naturally important that, to the greatest extent possible, the dispute resolution system results in decisions that are perceived as correct and that can be accepted by both parties. To achieve this, great emphasis has been placed on ensuring that the ADR Committee has the necessary expertise in the area, and that it works in accordance with clearly defined procedural rules. The basis for the ADR Committee’s decision, that is the parties’ submissions and any other information in the case, must be investigated in the best possible manner. In this connection, it is important that both parties have had the opportunity to present their views on the dispute.
Rapid processing at a moderate cost
A primary consideration for the ADR Committee is that use of the dispute resolution system should be at a reasonable cost for the complainant. This is achieved inter alia by choosing a dispute resolution process that is simple enough to avoid dependence on legal assistance in order for the parties to participate, since this increases the costs. In addition, it should be possible for the adjudication to result in a decision without delay. To achieve this, the process is simple, with the fewest stages possible. This in turn sets requirements for the time limits for response which are imposed on the individual participants in the process, and creates further restrictions on how thorough the preparation of the case can be before the decision is taken.
A trustworthy and considerate approach
It is vital that the ADR Committee has the necessary trust from the market. Users must be able to rely on the Committee’s objectiveness, its independence from the parties, its professional competence and the impartiality of its members.
Independence: The ADR Committee must be neutral and independent of the parties; it must not share an individual party’s interests, and it must treat the parties objectively.
Protection of the law: The dispute resolution system shall not deprive the parties of the protection that they would otherwise have had through the general legislation. Reasons must be provided for all decisions, and the parties must be notified of the decision as soon as possible after it has been made.
Openness: The parties must have full access to information about the system so that they know what is involved when they decide to complain. This means that the procedures and other relevant information about the process must be publicly available. In legal proceedings it is also customary that transcripts of court records, judgements and orders are available to the public. In the same way, previous decisions from the ADR Committee should be public so that it is possible to find information about how the system functions in practice.
Representation: It must be possible for the parties to be represented or assisted by a third party in the proceedings.
Balance between the various principles
As far as possible, the dispute resolution scheme for the .no domain should fulfil all the principles mentioned above. Some of the principles however directly contradict each other, creating the need to decide which of them is to be given priority.
The conflict arises primarily between the principle of thorough adjudication procedures that one is confident will result in correct decisions and the principle of rapid processing at a moderate cost. The more safeguards there are to ensure that the dispute resolution Committee makes the right decisions, the more elaborate the procedure for investigation of the complaint must be. This in turn means both higher costs and longer periods needed for dispute resolution procedures. The background for creating an alternative dispute resolution scheme as a supplement to the courts of law was the desire for a system which is faster and cheaper to use, and which therefore has a lower threshold for the parties who will use it. The principle of rapid processing at a moderate cost must therefore be given priority. In certain cases this may be at the expense of the right decision. This is also in accordance with the recommendations from both WIPO and the European Commission for such dispute resolution procedures.
Consequences of setting this priority include the need to set limits for the submissions that the parties can present (neither the complaint itself nor the response may exceed 2000 words in length, and all claims in the complaint and the response must be documented in annexes). In addition, the ADR Committee does not conduct any independent investigations, but considers only the submissions that the parties present. Limits are also set for the time that the ADR Committee can take to adjudicate the case.
At the same time, it is of course important to ensure that the ADR Committee makes correct decisions to the greatest extent possible. The primary safeguard is to ensure that the ADR Committee has the necessary competence in the area. In addition, the chosen procedure gives both parties the opportunity to present their view on the dispute, which provides a certain level for the basis on which the dispute resolution Committee reaches its decision. The parties bear the responsibility for presenting this basis, but in exceptional cases it is possible for the Committee to request more information if its members consider that the parties’ preparation of the case is not good enough.
In addition, a safeguard against incorrect decisions is included by limiting the dispute resolution system to the simpler cases. For conflicts over rights, these will typically be cases in which one party holds rights, while the other party does not. Cases that are more complex, or that go beyond the framework set for the ADR Committee, are refused and instead referred to the courts, where the requirement for correct decisions is given priority over the requirement for efficiency. A final safeguard lies in the fact that a decision from the dispute resolution Committee can be brought before the courts.
The principles which form the basis for a trustworthy and considerate approach can largely be fulfilled without conflict with the desire for a rapid process at a moderate cost.