How to register a dispute

ZADNA has initially accredited the Arbitration Foundation of Southern Africa and the South African Institute of Intellectual Property Law to resolve co.za domain name disputes. In terms of the Regulations, more service providers can be accredited if they satisfy the requirements listed in section 38.

A complainant can lodge a dispute by first selecting a service provider from those accredited by ZADNA. Then the dispute should be submitted to the selected accredited provider in the manner outlined in Chapter III of the Regulations. In addition, the complainant may be required by the accredited provider to satisfy supplementary requirements used by the provider in administering disputes.

Due to their specialised legal training, lawyers may be used to assist the complainant in submitting documentary evidence. Legal representation is not necessary as the Regulations do not allow for oral submissions.

The Regulations stipulate a number of administrative steps and checks that complainants, respondents and accredited providers must satisfy before the actual resolution of a dispute. Delays may arise as a result of incomplete dispute submissions and of registrants (i.e. domain name holders) not being accessible immediately to respond to complainants’ claims. As a result there is no certain timeline within which disputes should be resolved. Based on prior ADR timelines, ZADNA expects the entire dispute resolution process, on average, to last for plus or minus eight weeks.

It is up to the parties to a dispute to choose if they want their dispute to be resolved by a single adjudicator or a three adjudicator panel. For a single adjudicator, the complainant must pay R10 000 (ten thousand Rands) and R24 000 (twenty four thousand Rands) for a three adjudicator panel.

If the registrant chooses to have the dispute resolved by a three adjudicator panel instead of a single adjudicator panel, the registrant and complainant must each pay R12 000.

The stipulated ADR fees are meant purely to cover administrative costs that the accredited service providers incur in administering and resolving disputes. These costs are much cheaper compared to resolving domain name disputes through the normal court processes, which can cost up to R200 000 and is usually a much more lengthy process.

They are also much cheaper than the costs involved in having disputes resolved under other countries’ ADR procedures and under ICANN’s generic TLDs (top-level domains) such as .com. Another rationale behind these costs is to avoid having the ADR procedure abused through frivolous and unclear disputes.

If you have a valid dispute but cannot afford the required ADR lodgement fees, according to Section 34(5), ADR providers must pay 10% of each dispute fee to ZADNA, which ZADNA must use exclusively to fund other complainants and registrants seeking financial assistance. To avoid abuse of this ADR financial assistance option, ZADNA has an eligibility criteria which will be used to evaluate applications.

Applications for ADR financial assistance should be emailed to: adrfinancialassistance@zadna.org.za or be faxed to 086 688 7109 or +27 (0)10 020 3919.

Three kinds of decisions an adjudicator may make in resolving a .za domain name dispute:

• In the case of abusive registration, the dispute may be refused (i.e. the decision goes against the complainant) or the disputed domain name may be transferred from the registrant to the complainant (i.e. the decision goes in favour of the complainant).
• In the case of offensive registration, the dispute may be refused (i.e. the decision goes against the complainant) or the domain name may be deleted and prohibited from future registration
• The dispute may be refused on the basis that it constitutes reverse domain name hijacking (i.e. the use of the Regulations in bad faith to attempt to restrain the registrant from using the disputed domain name).

ADR Regulations do not provide for the recovery of costs by any of the parties, and this applies regardless of which party wins the dispute.

Adjudicator decisions can be appealed but this is limited to single adjudicator’s decisions. Three adjudicator panel decisions cannot be appealed. A party seeking to appeal must lodge a statement of intention to appeal together with the required appeal fee, and must within 15 (fifteen) days of lodging the intention to appeal submit an appeal notice.

The stipulated cost for an appeal is a fixed sum of R24 000 (twenty four thousand Rand).

At any stage during the dispute proceedings, a party may choose to refer the dispute to the high court of South Africa. In such case, the adjudicator will no longer proceed with the dispute.

You cannot recover your costs in case the dispute is referred to the high court during its consideration by adjudicators. ADR fees are primarily intended to cover administrative costs that the accredited providers incur. The fees cannot be refunded.

Once the adjudicator makes a decision, the accredited provider must notify in writing the parties and ZADNA. It must then notify the SLD administrator, which should implement the decision: if the decision is to transfer the name from the respondent to the complainant, the SLD administrator will effect such transfer. If the decision is against the complainant, the name will remain with the respondent. If the decision is to delete an offensive name, the SLD administrator will delete the name accordingly.

The accredited providers and ZADNA are all required to publish the decisions on their websites.

ZADNA is not restricted to accredit only service providers in Gauteng; it is willing to accredit service providers from other provinces of South Africa provided they satisfy the application requirements stipulated in the ADR Regulations.

Of primary importance is that the disputes are resolved using documentary submissions made by complainants and respondents using physical and/or on-line dispute lodgement. The Regulations do not permit oral submissions. This then makes the geographical location of accredited adjudicators of secondary importance.

In the meantime, ZADNA has accredited the Arbitration Foundation of Southern Africa (AFSA) and the South African Institute of Intellectual Property Law (SAIIPL) to resolve .za domain name disputes.

• Arbitration Foundation of Southern Africa
  Phone: +27 (0)11 320 0600
  Fax: +27 (0)11 320 0533
  Email: info@arbitration.co.za

• South African Institute of Intellectual Property Law
  Via snailmail: The Administrator, Domain Disputes.co.za, Box 11272, Hatfield, Pretoria, Gauteng, South Africa, 0028
  Via courier: Att: SAIIPL (DomainDisputes), Ground Floor, Lakeview Building, 1277 Mike Crawford Avenue, Centurion, Gauteng, South Africa, 0157
  Phone: +27 (0) 12 683 8827
  Fax: +27 (0) 86 563 1007 (Please clearly indicate on your package: For attention: SAIIPL)

These two service providers, although primarily based in Gauteng, are national organisations with adjudicators located in different parts of the country.

It is the responsibility of interested organisations to study the regulations and satisfy the stipulated requirements. ZADNA is available, if contacted, to assist applicants in understanding the requirements before they submit applications.