Adobe Systems
Cyberspace 2020
1
Other types of ADR regarding domain names and ODR
Pavel Loutocký

§URS = Uniform Radpid Suspension
(https://www.worldtrademarkreview.com/brand-management/urs-procedure-what-it-and-what-it-does)
§PDDRP = Trademark Post Delegation Dispute Resolution Procedure
(https://icannwiki.org/Trademark_Post-Delegation_Dispute_Resolution_Procedure)
URS & PDDRP

§Definitions:
dispute settlement which may or may not involve a binding decision being made by a third party,
implying the use of online technologies to facilitate the resolution of disputes between the
parties
§3 aspects:
1.dispute settlement
2.distant exchange of information
3.software assistance
What is ODR

1.the scope of the disputes where ODR is used
2.the position of the ODR provider
3.the use of modern technologies
4.the use of direct or indirect private enforcement mechanisms
5.existence of other dispute resolution provider
6.legal regulation
7.the tradition in alternative dispute resolution
8.the transparency
8 PARAMETRS OF EFFICIENT ODR SYSTEM

1.EU Consumer ODR
2.UDRP (domain name dispute resoution)
3.eBay & PayPal
4.Youstice
4 CASE STUDIES

1. the scope of the disputes where ODR is used
online consumer disputes (goods & services)
quite broad
2. the position of the ODR provider
ODR platform is only clearing house
in fact no dispute settlement
dispute settlement is left to the ADR entities
3. the use of modern technologies
very limited
only exchange of information, no other processing
4. the use of direct or indirect private enforcement mechanisms
no use of enforcement mechanisms
it is NOT supporting the position of the ODR platform
EU CONSUMER ODR

5. existence of other dispute resolution provider
many other consumer schemes
overlapping with other possibilities
6. legal regulation
very complicated regulation
confusing for consumers
7. the tradition in alternative dispute resolution
building on previous experience
8. the transparency
No possibility to verify
RESULT: NOT WORKING SCHEME
EU CONSUMER ODR

1. the scope of the disputes where ODR is used
domain name disputes
very limited
2. the position of the ODR provider
very strong
ICANN (national authorities) are controlling the CODE (infrastructure)
3. the use of modern technologies
full possibilites of online communication
online form to exchange the information
4. the use of direct or indirect private enforcement mechanisms
ICANN (national authorities) are controlling the CODE
non-binding arbitration
UDRP

5. existence of other dispute resolution provider
N/A
6. legal regulation
transparent rules
national legal regulation only very broad and distant
7. the tradition in alternative dispute resolution
N/A
8. the transparency
Rules, decisions, guidelines available
RESULT: VERY EFFICIENT SCHEME
UDRP

1. the scope of the disputes where ODR is used
e-commerce online disputes under eBay platform
quite broad
2. the position of the ODR provider
very strong (PayPal does the disputes)
controlling the behaviour
3. the use of modern technologies
full possibilites of online communication
automatization of decision making process
4. the use of direct or indirect private enforcement mechanisms
Reputation mechanisms (indirect private enforcement)
modified escrow (direct private enforcement)
EBAY & PAYPAL

5. existence of other dispute resolution provider
N/A (not used by other platforms in such broad meaning, others are using only limited potential)
6. legal regulation
Not transparent & complicated rules
national legal regulation only very broad and distant
7. the tradition in alternative dispute resolution
N/A
8. the transparency
Problematic rules
Decisions or guidelines NOT available
RESULT: VERY EFFICIENT SCHEME
EBAY & PAYPAL

1. the scope of the disputes where ODR is used
e-commerce online disputes for any online shop
very broad
2. the position of the ODR provider
medium
3. the use of modern technologies
full possibilites of online communication
VIZUALIZATION
4. the use of direct or indirect private enforcement mechanisms
Youstice Trustmark
YOUSTICE

5. existence of other dispute resolution provider
N/A (unique solution)
6. legal regulation
Not transparent & very simple rules
national legal regulation only very broad and distant
7. the tradition in alternative dispute resolution
N/A
8. the transparency
Problematic rules
Decisions or guidelines NOT available
RESULT: MEDIUM EFFICIENT SCHEME
YOUSTICE

1.the scope of the disputes where ODR is used
does not matter
2.the position of the ODR provider
strong position is important
3.the use of modern technologies
broad implementation of IT is necessary (automatization as well)
4.the use of direct or indirect private enforcement mechanisms
crucial for effectiveness and success
RESULTS?

5. existence of other dispute resolution provider
should NOT be overlapping
6. legal regulation
should NOT be limiting and complicated
7. the tradition in alternative dispute resolution
NOT important
8. the transparency
SURPRISE – NOT important
RESULTS?

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Online courts
̶Online court X ODR
̶ODR – online dispute resolution – tools for settling the disputes (court and out-of-court)
̶Online court – institution providing the opportunity to resolve disputes using online tools
shielded by the public power
̶
̶Incorporation of modern technologies:
1.Communication
2.Data processing (file management, big data, open data?)
3.Redesign of current court processes
4.New approaches unknown to current justice (e.g. blind bidding) or facilitation
̶

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Important to realize! (especially for Czechia?)
̶Inclusion of out-of-court settlements
̶Negotiation / mediation / software assistance in pre-trial proceedings
̶Possibility of transition to classical court proceedings
̶The whole process is shielded by binding decision-making process (in the case of out-of-court ODR,
there was often a problem with the motivation of the parties, unless enforcement mechanisms were
set up)
̶Dworkin - easy X hard cases

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State of eJustice in Czechia
̶An exemplary example of an inappropriate grasp of the electronic justice system
̶The inconceivability of the approach  to the whole issue is evident from the individual fragmented
strategies
̶Electronization not mentioned as a separate goal
̶One of the worst countries in EU (eGovernment Benchmark 2017)
̶OECD statistics – better, but general categories (not mentioning more sophisticated
implementation)
̶eFile management system is trying to be complexly presented more than 10 years without greater
achievement (fragmentation, different systems, different providers)
̶But in the moment, strong push on digitalization in general in eGovernment (Act on Digital
Services)

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Lessons to be learnt
̶Theoretically -  Richard Susskind
̶3 Tiers
̶
̶Practically e.g. Civil Resolution Tribunal (Canada)
1.Negotiation / software assistance
2.Mediation (mediator) or facilitation (clerk, facilitator)
3.Online court proceedings
̶The area of disputes is usually limited to civil disputes (but this is not the rule); but it is
certainly not limited only to online disputes

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Project of Online Court in Czechia
̶Not a rocket science – inspiration in Canada:
̶85% of cases are solved in pre-binding (out-of-court) stages at online court
̶In the Czech Republic, a similar construction, involvement within one specific judicial
institution – e.g. the Municipal Court in Prague?

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Project of Online Court in Czechia
̶Multi-stage process (education, negotiation, software assistance, mediation / facilitation, court
decision)
̶The need for sufficiently long preparation, otherwise there are a number of risks
̶Specialized institution partly cut off from classical court processes (and offered as something
extra) is the KEY (in our opinion)
̶It is not possible to penetrate whole justice with this process model

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Problems
̶Classical challenges
̶Resistance
̶Constancy
̶Fragmentation of systems (different providers, different systems)
̶Unwillingness to change something, pessimistic staff, etc.
̶More complex challenges
̶Wider use of modern technologies (more complex tools, automatization)
̶Open data
̶Problems associated with modern technologies in automation (transparency issues, human rights)
̶etc.
̶EU regime (ODR platform) is really NOT the inspiration

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Conclusion
̶All the problems can be overcome
̶Many arguments are faulty and arising from the unwillingness to changes (judge Briggs, legal
realism etc.)
̶Necessary reaction to nowadays challenges
̶No replacement of „classical“ approaches -> upgrade and utilization of the tools we already know
(private ODR mechanisms)
̶etc.

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Conclusion
̶
Examples of Online courts:
̶Civil Resolution Tribunal in Canada
̶Singapore eJustice
̶Chines Internet Courts

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Tank you for your attention.
Any questions?
loutocky@muni.cz