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: 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.