New Chinese-language Domain Name Dispute Resolution Procedures: ICANN can't, but can China?

There has been a lot of debate in the Chinese and international press on the regulation of Chinese domain names. In response to initiatives by registrars accredited by the Internet Corporation for Assigned Names and Numbers (ICANN) to register Chinese domain names and spurred on by a desire to establish the de facto standard for the registration of Chinese domain names, the China Internet Network Information Centre (CNNIC) recently promulgated procedures on the resolution of disputes concerning Chinese language domain names. Following hot on the heels of this legislation come new procedural rules, issued by the China International Economic and Trade Arbitration Commission (CIETAC) Domain Name Dispute Settlement Centre and setting out the detailed procedures to be followed in domain name dispute arbitrations.

Over the past year, China has implemented a series of detailed regulations on the management of the registration of Chinese-language domain names and the resolution of disputes relating to such domain names. The various regulations demonstrate a determination on the part of the Chinese government generally to create an open and transparent system that will be more attractive to consumers than the "rival" systems being offered by ICANN- accredited registrars. The battle for the hearts, minds and business of such consumers is given added spice by the fact that the Chinese government considers that only Chinese registrars, accredited by CNNIC, should have the right to register Chinese language domain names.

The Settlement of Domain Name Disputes Procedural Rule (Trial Implementation) (域名争议解决程序规则（试行）), formulated by the CIETAC Domain Name Dispute Settlement Center, and effective from January 1 2001 (the CIETAC Procedural Rules) are the latest in the raft of domain name related Chinese legislation. In November 2000, CNNIC promulgated the Resolution of Disputes Concerning Chinese-Language Domain Names Procedures (Trial Implementation) (中文域名争议解决办法（试行）)(the CNNIC Procedures), which set out the broad framework for the regulation of disputes arising in relation to Chinese-language domain names. The CIETAC Procedural Rules have been issued pursuant to the CNNIC Procedures. Together, they form the cornerstone of China's response to international and domestic commentators who have doubted its ability to implement effective and transparent domain name dispute resolution mechanisms.

The CIETAC Procedural Rules set out, in detail, the procedures governing the arbitration of disputes relating to Chinese-language domain names and brought before CIETAC. In the main, the new rules set out the:

(a) general procedures for the preparation and service of documents by all parties (including CIETAC) in relation to a dispute;

(b) content of and procedures for the submission of a claim and response in relation to a dispute;

(c) method of appointment of a panel of experts that will adjudicate any dispute, and the procedures for the panel's operation; and

(d) the fees charged by CIETAC for the service.

The new rules are comprehensive in their detail.1 The issuance of the rules and the appointment of CIETAC by CNNIC as China's first arbitration center to hear such disputes mirrors international developments such as the adoption by ICANN in 1999 of the Uniform Dispute Resolution Procedure and also ICANN's appointment of recognized centers to mediate on international disputes over domain names.

Content-wise, the CIETAC Procedural Rules also broadly follow the Uniform Dispute Resolution Procedure. Claims are limited, for example, to cases involving trademark owners and CNNIC-registered domain name holders. They also limit the remedies available to a successful complainant and provide for the automatic application of domain name dispute resolution regulations to the pro-forma contracts entered into between prospective domain name registrants and with CNNIC-accredited registrars. Finally, the CIETAC Procedural Rules also specifically address complaints brought against cybersquatters. This article will review the CIETAC Procedural Rules in light of the CNNIC Procedures and international developments in the area.

CIETAC's JURISDICTION2

In line with similar developments overseas, CIETAC may be the first of several bodies eventually granted jurisdiction to hear Chinese-language domain name disputes pursuant to the CNNIC Procedures. CIETAC's experience with disputes involving Chinese and foreign interests may well have been one of the reasons that it has been chosen as the "flag bearer" for the resolution of Chinese-language domain name disputes.

CIETAC has created a new body to hear domain name disputes, namely the CIETAC Domain Name Dispute Settlement Center. CIETAC's ability to arbitrate such disputes reflects a recent expansion in the general jurisdiction of CIETAC. Pursuant to a change in its rules, CIETAC can now hear disputes in relation to matters that are specified by Chinese law as being appropriate for arbitration or for which parties have specified CIETAC arbitration in their agreements. This, in theory, means that CIETAC is now able to arbitrate purely "domestic" disputes, or disputes with no distinct international ( 国际) or foreign ( 涉外) element. This is a marked departure from CIETAC's more limited jurisdiction in the past, and may herald a new and revamped role for CIETAC in Chinese dispute resolution.