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
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.