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Notes from Meeting at ICC HQ in Paris.
International Arbitration clause for ccTLD-ICANN contract.
Meeting venue: ICC HQ, 38 cours Albert 1er, 75008 Paris
Meeting date: 4 April 2001, 9:30 - 13:00
Meetings participants: Emmanuel Jolivet (ICC), Richard Francis (Nominet), Jean-Christophe Vignes (Afnic), Elisabeth Porteneuve (Afnic)
The contract between ccTLD and ICANN has been discussed since long months within ccTLD, the best effort document is published in http://www.wwtld.org/ongoing/icannservices/20001114.ccTLD-ICANN.service.html
This document is articulated along the following list of issues:
1. Obligations of ICANN (Root Database and Root Servers)
2. Obligation of ccTLD Manager (responsibility of his own information in ICANN Root Database and Root Servers)
3. Remedies for breach by ICANN (damages)
4. Remedies for Breach by ccTLD Manager (best efforts to contact Manager, technical re-delegation to an alternative Manager)
5. Duration (no time limit)
6. Termination (only the second case considered: 1) if contract terminates, but status is as if was before the contract, i.e. the manager continues to operate. 2) the operator decides to stop business)
7. Notices (all the things about who and how notices given)
8. Variation and Re-assignment
9. Jurisdiction (not discussed)
10. Applicable law (not discussed)
Several hypothesis have been considered as for jurisdiction and applicable law, allowing for a better understanding of difficulties:
1. It is not acceptable for ccTLD Managers to have international relationship under Californian law and jurisdiction
2. It is unpractical to allow for all possible mesh of jurisdictions and applicable laws, not to mention all possible languages
Both ccTLD Managers and ICANN Policy Officer are eventually looking into International Chamber of Commerce arbitrations (ICC, http://www.iccwbo.org, ICC International Court of Arbitration, http://www.iccarbitration.org)
The ICC is providing classical arbitration service. For maritime purposes a narrowed special ones has been designed, however these were never used - it appears that the broader service is always preferred.
On 4th April, following a joint Afnic - Nominet effort, a small informal meeting was held at ICC, ICC Headquarters, 38 cours Albert 1er, 75008 Paris, with Emmanuel Jolivel, General Counsel.
The ICC is interested in Internet business and following attentively Internet matters. It is worth to be mention that Domain Names disputes are out of scope of ICC, but such is not a case for business disputes.
A ccTLD vs. ICANN situation was presented, followed by a discussion of possible ICC arbitrations and how to include them into contract.
There are several reasons to use ICC services: well known, very professional and well functioning, satisfied customers, the cost known in advance and proportional to the amount of money on stake. Several ICC arbitrations were related to a very political issues, with governmental implications. Such an expertise is of interest to the ccTLD, because the re-delegation is definitely political issue, with governmental implications.
The ICC acknowledges the great interest of both, ccTLD and ICANN, to use arbitration clause in the contract ccTLD - ICANN under preparation. The ICC is eager to participate in a seminar to be at the next ICANN Meeting in Stockholm, during which ICC arbitration matters and Arbitration Clause to be included into ccTLD - ICANN contract will be considered. Emmanuel Jolivet agreed to participate in a ccTLD Meeting in Stockholm on 1st June.
From ccTLD perspective, drafting an arbitration clause is the highest importance. The ICC arbitration is possible only if there is an agreement between the parties providing for it.
The wording of the clause is very important to balance Arbitration flexibility. Think how difficult is to communicate across languages and culture. The precise wordings is necessary to ensure that the interpretation of arbitration clause be as unique as possible, independent of country, culture and ICC Arbitrator. The arbitration procedure can be adapted to whatever needs we may have (number of arbitrators, whether an expert on DNS problems is mandatory or not...) but this had to be decided into the "arbitration clause" that the agreement must include. Therefore, the assistance of lawyers in this area of expertise might be very useful.
The ICC provide some important recommendations on drafting on its web site. Several lawyers with a long practice to ICC arbitration may provide that expertise as well. Stephen R.Bond at White And Case offices in Paris, (former Secretary of the ICC International Court of Arbitration) did publish an article "How to draft an arbitration clause" which is an excellent help to anybody considering ICC services. Bond's article (paper copy in English and French are available) is based on two studies of arbitration clauses in cases submitted to the ICC, and provides advices on how to draft an Arbitration Clause, considering:
1. Ad Hoc or Institutional Arbitration
2. The Standard Arbitration Clause
3. The Place of Arbitration
4. Applicable Law
5. Composition of the Arbitral Tribunal
6. Language of the Arbitration
7. Waiver of Appeal / "Exclusion Agreement"
8. Entry of Judgement Stipulation
9. Other Matters
To find out about ICC publications on International Arbitration, please visit ICC Publishing website at: http://www.iccbooks.com. It seems that one of the most important books is "ICC Arbitration 3rd Edition" by Craig, Park and Paulsson, Published by Oceana Publications, Inc., and distributed by ICC Publishing. The ICC International Court of Arbitration Bulletin also provides first-hand information, essential documents on arbitration as well as extracts from ICC arbitral Awards. Please visit the website pages related to the Bulletin at: http://www.iccwbo.org/court/english/bulletin/bulletin.asp
Currently the ICC is developing an ADR Rules (ADR stands for Amicable Dispute Resolution, and is about classical arbitration service) which shall permit the parties to agree upon whatever settlement techniques they believe to be appropriate to help them settle their dispute, with the mediation as default option.