Re-thinking The Legal Issues Of ICANN Domain Name Dispute Resolution Mechanism

Along with the development of Internet, domain name disputes have continuously increased. Based on Final Report of the First WIPO Internet Domain Name Process, Uniform Domain-Name Dispute-Resolution Policy, passed by ICANN more than ten years ago, has demonstrated many advantages during its operation, but also received lots of challenges.Since the Final Report of the First WIPO Internet Domain Name Process was first published in 1999, 99 articles in Chinese can be found through Chinese academic databases by entering the key words domain name, dispute and arbitration. 60 articles in English can be found through English academic databases by entering key words domain name, dispute, arbitration, ICANN and UDRP. The academic study on ICANN domain name dispute resolution has been made widely and deeply. The advantages and disadvantages of it have been analyzed to some extent.WIPO published the Final Report of the First WIPO Internet Domain Name Process on April. 30, 1999. It made several suggestions concerning the resolution mechanism of domain name disputes, i.e. ICANN set up an arbitration-like dispute resolution mechanism run by a third party; ICANN limit the scope of the application of the mechanism to the disputes between trademark holders and domain name holders; ICANN set up a dispute resolution mechanism with administrative character so as to avoid its conflict with court proceedings. The disadvantages of it include its definition of"deliberate, bad faith, abusive domain name registration"and the special prior protection for well-known trademarks.By referring to the Final Report of the First WIPO Internet Domain Name Process, ICANN passed on August 26, 1999 and begin to carry out on Oct. 24, 1999 Uniform Domain-Name Dispute-Resolution Policy and Rules for Uniform Domain-Name Dispute-Resolution Policy. This set up the ICANN domain name dispute resolution mechanism. The achievements of it are to lowered the cost of domain name dispute, to speed up the domain name dispute resolution process, to maintain the transparency of domain name dispute resolution and to ensure the enforceability of the award. The controversies include, in the aspect of substantive rules, the legal sources based on which ICANN set up the substantive rules and the flawed stipulations of domain name hijacking, and, in the aspect of procedural rules, that the respondent is forced to participated in the ICANN domain name dispute resolution mechanism, that the complainant is entitled to choose the dispute resolution service provider, that one dispute can be tried twice, that it lacks of hearing proceedings, that the US courts does not recognize the fact-findings in the ICANN award and that the panels are biased.Therefore, the reform of ICANN domain name dispute resolution mechanism should include perfection of the stipulations of domain name hijacking, to balance the procedural rights between the complainant and the respondent, to avoid the choice of dispute resolution service provider by the complainant, to build challenge system of experts and to ensure the impartiality of the panels.Similarly, CNNIC Domain Name Dispute Resolution Policy Note also has problems concerning the location of the CNNIC, the jurisdiction of courts and the definition of"bad faith"to be solved.