Resolution of Domain Disputes under UDPR

Abstract

The paper examines the legal nature of specialized non-state arbitration centres which deal with a special type of disputes related to domain names under the UDRP procedure (Uniform Domain Name Dispute Resolution Policy). The UDPR is a unified strategy of resolving domain disputes which was developed by ICANN — an organization distributing names and numbers. The article compares and contrasts specialized non-state arbitration centres under the UDPR and commercial arbitration. The author stresses that the common feature in the functions of specialized centres and the international commercial arbitration is non-state functioning, private law disputes, applying non-state sources of law (lex mercatoria and lex informatica) and making agreements providing for the jurisdiction of organizations. However, these characteristics of functioning of specialized arbitration centres and the possibility to transfer the disputes to a national court and non-compensatory protective means allow classifying such centres not to mediatory but commercial arbitrations but to extrajudicial alternative types of dispute resolution. The article presents a comparative analysis of the legal nature of agreement under which disputes are transferred to specialized arbitration centres and arbitration agreement the legal nature of which is detailed within contractual, procedural and mixed theories. The article stresses that the clause in an agreement on registering a domain name under which the owner (administrator) of the domain name agrees to consider a dispute under UDPR rules is not completely consistent with the nature of arbitration agreement as it does not exclude the jurisdiction of state court for such disputes which may be within the competence of arbitration court. This condition contradicts the nature of arbitration trial characterized with final opinion and independence of courts which are part of the state judicial system.