Transcript Document

A FRESH LOOK AT ONELINE
DISPUTE RESOLUTION (ODR)
AND GLOBAL E-COMMERCE
Prof. Dr. Ricardo Sandoval L.
PROCEDURE OF THE ELECTRONIC
ARBITRATION
Disputes submitted to arbitration under the
dispute resolution system of NIC Chile are
processed and resolved exclusively by electronic
means.
The procedure and all proceedings of the
arbitrator and the parties are expressed by
electronic means, unless this actions for their
nature or volume requires or permits a better
way of expression and constancy.
Concept of Online
Arbitration System.
It is an electronic platform that NIC Chile makes
available to all arbitrators, which consists of a
service
equipped
with
a
technological
infrastructure designed to enable and facilitate
the administration of arbitration cases in the
best conditions of security, interoperability,
accessibility, proper storage and distribution of
electronic documents.
The extent of the involvement of NIC
Chile:

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The organization is acting solely as a provider of technology
support service and has no jurisdictional authority or other
obligation that the law or other regulation on the matter
expresses.
Also, it is not responsible for failures, errors, omissions or
temporary declines of the System caused for any reason,
own or by a third party, nor for any inaccuracy, error or
omission in the information distributed through it, or of the
timing and content of electronic mail generated by the
system.
The NIC is not responsible for the interruption in sending or
receiving emails as a result of any cause attributable to any
Internet access provider, and does not guarantee response
times, beyond the doors of their servers that are hosting the
Online Arbitration System software.
Exclusive use.
The Online Arbitration System is designed
exclusively to be used in the arbitral process and
excludes the possibility of applications outside it,
such as, sending unwanted email or spam,
generic queries, or others. Also, it may not be
used for acts that in some way could damage,
disable, overburden, impair, prevent or limit the
use of all or some of the functionality of the
system.
Concept website arbitration.
It is a website where the management and
administration is the responsibility of each arbitrator of
the system for the development of their function, who
will have available the status of processing of all records
that have been assigned to them.
Use of the advanced electronic signature
The identification of each arbitrator will be assured by a
digital certificate which each individual must acquire of
any of the bodies providing certification services for
electronic signature authorized to operate according to
Chilean law.
The access of the parties to the file
and their keys.
They have access to the file that corresponds or to the
domain names in dispute, from an email address, where
they have various tools that enabling them to interact
with the court to intervene and participate in the conduct
of arbitration proceedings.
After the arbitrator accepts resolve the conflict, the
system automatically sent to the parties as keys to
access the appropriate website arbitration.
These keys are for the exclusive use of the parties,
being them responsible for its administration, custody,
maintenance or guard against misuse by third parties
outside the trial.
The electronic file.
The arbitration procedure consists in an electronic file, in
which they settle and incorporate all the actions of the
arbitrator, stating the date and time of completion. Also,
it contains a record of all communications that rise from
his actions and all documents submitted by the parties,
stating the date and time of receipt.
During the proceedings, only the parties and their
representatives have access to the arbitration service
records, which is available online permanently, but
subject to temporary disruptions caused by the needs of
web server maintenance or other similar nature.
A file for each conflict:
Any dispute for a domain name will lead to the creation
of an electronic file. However, NIC Chile may consolidate
into a single file the process of several disputes for
domain names, when reasons of judicial economy so
warrant.
Paper documents.
The arbitrator may accept, founded at the request of
either party, the filing of paper documents or other
media when they, in justified circumstances, can not be
digitized and incorporated into the electronic file. In this
case, the arbitrator will open a separate notebook with
the respective references in the electronic file.
The
repository
of
electronic
files.
For
purposes
of
advertising,
conservation and storage, NIC Chile has a
repository where they store all electronic
files that
have completed their
processing.
Notifications.
All notices and communications between the
tribunal and the parties must be performed by
email.
In the case of the actions of the arbitrator, is
required that all of them consist in emails
digitally signed, especially the resolution by
which the arbitrator accepts the arbitration and
the one that notifying the arbitral award, except
that in the latter case, the parties and the
arbitrator had applied for its notification by other
means.
E-mail Addresses.
For the purposes of notices and
communications in the arbitration, are
consider as valid email addresses the ones
registered in the database at NIC Chile, at
the time of the appointment of the
arbitrator, all of whom are reported in the
trade designation
The language of the arbitration.
The language in which arbitration takes place is
Spanish.
Notwithstanding, the arbitrator may accept
documents in a different language and, if he
think is relevant, he can order the corresponding
translation.
Appointment of the arbitrator by NIC
Chile.
When the appointment has not been done
by the agreement of the parties, it is
understood that they entitle NIC Chile,
expressly and irrevocably, to choose
instead of them an arbitrator from the
roster established for this purpose. This
appointment is considered as made by the
parties.
Deadlines.
The deadlines laid down in the online
arbitration are of consecutive days and,
they start the day following the
notification of the decision concerned.
The court, by itself or upon request of
either party, may grant the extension of a
deadline, but this can not exceed half of
it. The request for a extension and the
resolution that receives it, must always
occur before the deadline in question.
The arbitral court
It consists of an arbitrator who can be appointed
by all parties. In this case, the designation may
be entrusted to a lawyer on the list that is
published in http://www.nic.cl/arbitros.html or in
one outside it.
The appointment of an arbitrator by mutual
agreement shall be reported to NIC Chile before
the appointment can be made in accordance
with the regulation (pár.8.2), for the adoption of
implementing measures that are relevant.
The confidentiality of the arbitration.
Initiated the arbitration, the arbitrator, the parties and
their representatives must maintain the confidentiality of
all the evidence adduced at trial and all communications
between them and the court.
Also, under any circumstances, none of them may be
disclosed to third parties outside the trial information
which knowledge is a result of their access to the
electronic file.
This is apart of the power that the arbitrator have to
deliver information at the request of another competent
court and in the publication of a decision that resolves
the conflict, which takes place after proper notification
The arbitration fee.
The arbitrators' fees are paid by all applicants
for a domain name, except the first of the
parties in a conflict, or the current assignee, if it
is a conflict for revocation. But this is subject to
what is decided ultimately on the award of
arbitration.
Impartiality and independence.
The designated arbitrator shall not have any interest, financial or
other in the results of the trial and undertake to act in good faith,
honesty and due diligence in resolving the dispute.
Disqualification. All arbitrator must be impartial and independent
and, therefore, along with the acceptance of their appointment, they
shall communicate to the parties if there is a circumstances that
might create a reasonable doubt on the impartiality or independence
to perform its function.
In case of any circumstance which in the opinion of the arbitrator
may disqualified him to accept the arbitration, he can refuse the
appointment. Along with that statement, the arbitrator must disclose
the circumstances of its decision. As soon as the statement is
received from the arbitrator, NIC Chile will make a new appointment.
Effects of procedural inactivity
The silence, the inactivity or the non-appearance
of either party are not regarded as
acquiescence, lack interest or admission of the
facts alleged by the other party.
Also, any of those circumstances can be
considered as grounds to accept the claims of
either party or as an obstacle to the arbitrator,
who should decide the dispute according to the
facts and evidence in the process.
Summary of Procedure: Opening the mail file.
Along with the notification of the appointment of the
arbitrator, the NIC Chile sends all the background of the
conflict. The arbitrator must accept or reject the
nomination within 5 days of receiving the notification. In
case of refusing the designation or if no communication
of acceptance is received within this period, the NIC
shall appoint a new one.
If accepted, the arbitrator will have to open a new
electronic file, that automatically sends a message which
will contain the assignment of a username and password
to all parties to the arbitration proceedings.
The acceptance of the arbitrator.
The arbitrator accepts the arbitration and swear
to faithfully carry out the job with due diligence
and in the shortest time possible. Similarly, the
declaration must state that there is no
circumstance of disqualification for is job.
Declaration of disability.
Either party may request a declaration of the
inability of the arbitrator, stating the facts and
circumstances in which it is based, within 5 days
from the notification of the acceptance of the
arbitrator.
Decision on disability.
The arbitrator must evaluate the
background and decides whether he
accepts or rejects the disability. If the
opposing party expressly manifested its
consent to the disability expressed by the
other, the arbitrator must resign.
The arbitrator also may resign from his
job, even in the absence of agreement
between the parties on the grounds
invoked by either party.
Demand response and test
Within 5 days of the notification of the closure of the
stage of entry fee, the applicant must submit his
application to the arbitral tribunal. The defendant shall
have a period of 5 days since the arbitrator has notified
the filing of the lawsuit to establish his defence. Also
counterclaim shall not be admissible, nor any of rebuttal
or rejoinder.
Along with each of their statements of claim and defence
the parties must accompany all evidence they deem
relevant.
No testimony is admissible or a confession, unless the
court deems it absolutely necessary for the successful
resolution of the dispute.
Rejection of action.
The court has the power to dismiss actions or
proceedings as it deems, at its sole discretion, that are
unnecessary, or may alternatively be realize otherwise.
Incidents.
All incidents that are promotion in the proceedings
should be resolved in the final sentence, unless the
arbitrator finds that are pre-appeal judge.
The court may award costs to the party that promoted
and lost incidents, according to general rules of the Code
of Civil Procedure
Extended jurisdiction of the arbitrator
It is empowered to resolve, according to his legal
authority, any matter not specifically considered in these
rules of procedure and may automatically perform the
steps he deemed necessary to a conviction on the facts
discussed in the process and the rights of the parties , all
of which must be recorded in the final decision.
Resource Replenishment.
The deadline to put this resource is three days from the
date of the notification of the decision concerned. This
appeal does not proceed against the final sentence,
without prejudice to the request for clarification,
correction or amendment, which must be made within
three days. The acceptance or rejection of the
replacement can be decided in the final decision.
Dictation of the Sentence.
After the expiration of the period of demand
response and evidence, the arbitrator will
declare the debate closed and the process will
be in pending. In this statement will not be
accepted submissions of any kind, except those
which are intended to discontinue the
application for registration or revocation of the
disputed domain name or terminate anticipated
the litigation.
The arbitrator is obliged to issue his award
within 20 days.
Explanatory Notes.
Notwithstanding the foregoing, the arbitrator
may decide upon measures to best resolve or
seek better explanatory notes to one or all
parties.
If the arbitrator had request notes for
clarification, he can order that this should be
completed within 5 days.
In the case of measures to best resolve, the
court shall proceed according to law.
Sentence.
The arbitrator shall notify the resolution of
the dispute by sending a digitally signed
e-mail to the addresses entered in the
arbitral proceedings, unless they have
applied and the arbitrator had ordered
their notice by other means. Likewise he
shall proceed to notify the NIC Chile of the
resolution that order to comply with the
resolution.
The same resolution will order the return
of the documents in cases which were
allowed in a different format to digital and
will order the NIC Chile to publish the text
of the resolution on the website provided
for that purpose.
Once the decision is notified, NIC Chile
will inform the implementation of the
resolution and will close the electronic file
and the.