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[ga] Fw: Dispute Resolution for *.nz

To All......FYI.......


----- Original Message -----
From: "David Farrar" <david@FARRAR.COM>
Sent: Wednesday, April 11, 2001 8:06 PM
Subject: Dispute Resolution for *.nz

Some list subscribers may be interested in the consultation ISOCNZ is
undertaking to determine what (if any) dispute resolution policy and
should be in place for *.nz.

Information is at http://www.isocnz.org.nz/public/working-group-reports/wg-
domain-name-dispute-resolution/dndrwg010223termsofreference.html (apologies
the idiotically long URLs).  While the policy will only apply to *.nz, we
that our third largest registrar is register.com so stakeholders are not
located just in NZ.

An initial set of questions have been posted as a starting point.  These are
included below.  Feedback is welcome either directly to the dedicated
list set up for the purpose (found at URL above) or I can summarise any
comments made to me directly or on this list.


David Farrar
Member, Domain Name Dispute Resolution Working Group

From dndr-discuss@isocnz.org.nz  Sun Apr  8 21:16:24 2001
From: dndr-discuss@isocnz.org.nz (Rick Shera)
Date: Mon, 9 Apr 2001 09:16:24 +1200
Subject: [dndr-discuss] Trigger Questions
Message-ID: <000301c0c071$3817b890$4a2337d2@rick>

Hi all,

If you're here its because you have some interest in domain name disputes in
New Zealand.  Hopefully that interest will extend to considering the
following questions and posting your comments to this list.  Please note
that these are not intended to be exhaustive - any and all constructive
contributions are welcome.

----------------cut here-------------------------------


1.  Do we need an alternative dispute resolution procedure (ie an
alternative to the Courts) for domain names ending in .nz?  Why/Why not? Is
there a problem in NZ? How many problems are there involving disputes
between trade mark owners and domain name registrants? How could we find
out? (Poll the trade mark attorneys?)

2.  If we do, is there any need for a specialised service as opposed to the
general dispute resolution agencies which exist such as the LEADR (Lawyers
Engaged in Alternative Dispute Resolution), Mediators and Arbitrators
Institute etc?  Why/Why not?

3.  If a specialised service is required or advantageous, what should it
look like?  You may like to check what is being done in other jurisdictions
or domain name spaces eg:

ICANN UDRP - http://www.icann.org/udrp/udrp.htm
India (.in) - http://domain.ncst.ernet.in/domreg/disputepolicy.html
Canada (.ca) - http://www.cira.ca/en/faq-menu6.html
UK - (.uk) - http://www.nominet.org.uk/ref/drs-consult.html

4.  Should any system be compulsory (ie mandated in a contract entered into
by the registrant when applying for or renewing a .nz name)?

5.  Should the system be adjudicative (ie someone (an arbitrator) imposes
their decision after inviting submissions from the holder and the claimant)
or alternatively should the process be a mediated one with a mediator
facilitating rather than imposing a decision?  Are there any other options?
.uk has had a mediation type system for several years and is looking at
superimposing an arbitration level.

6.  Should there be any cost involved for either party in bringing or
defending a claim or should this be a cost of the overall DNS (in other
words paid for by all .nz domain name holders as part of their domain name
fee)?  How should the person who will "hear" the dispute be appointed?
Should there always be more than one person appointed?  How many people?  If
there is some flexibility in number, how will the number be settled?

7.  What types of disputes should such a service handle?  Should claims be
confined to registered trade mark holders or should common law and other
statutory rights holders be allowed to claim (eg for passing off and breach
of the Fair Trading Act 1986)?  Should the service be extended even further
to cover disputes between domain name holders and registrars/ISPs/the
registry in relation to domain name services? Is there more of a need for an
on-line resolution service for the disputes between rival claimants, both
with legitimate rights, perhaps even both with trade mark registrations
 the "Olympic Fisheries vs Olympic Taxis" problem)?

8.  Is such a service appropriately run by ISOCNZ as the ccTLD manager for
.nz?  If not, who should have this responsibility taking into account that
it is ISOCNZ's responsibility as the delegatee of .nz to manage the space
for the good of the community?  If ISOCNZ is to have the responsibility
should it run it itself or contract it out?

9.  What sort of qualifications/experience should arbitrators/mediators
have?  How should they be appointed to the pool of available people?  Who
appoints them?  Are they employed by ISOCNZ or whatever agency runs the
service or are they contracted as and when needed from the pool?

10.  Would there be a right of appeal to another alternative dispute body or
to the Courts?  How is an appellate  body to be constituted etc?  How are
the above questions 1-9 (as relevant) answered in respect of that appellate

11.  What remedies can be awarded to a successful claimant?  What about
costs awards against the unsuccessful party, or against a vexatious
claimant, or one who is found to have somehow abused the process or acted
oppressively (eg reverse domain name hijacking if this is considered an

12.  Should arbitrations/mediations be confidential?  Should any
decision/settlement be confidential?  If not, should decisions be reported
and therefore be available as some form of precedent?

13.  What form of quality control should be maintained in respect of
decisions and/or decision makers, if any?

14.  What are the consequences, if any, of the fact that some  complainants
will come from outside New Zealand, as will some registrants?



Rick Shera, Ll.B, MComLaw
+64 21 612 713

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