The Information Communications and Technologies Authority
(“ICTA“) is planning on certain
amendments to the Communiqué on Dispute Resolution Mechanism
concerning Internet Domain Names
(“Communiqué“)1 with the Draft
Communiqué Amending the Communiqué on Dispute
Resolution Mechanism concerning Internet Domain Names
(“Draft Communiqué“),2 approved it
within its decision of August 10, 2021 with number 2021/IK-BTD/220
and decided to seek public opinion until August 25, 2021. The Draft
Communiqué is aimed to introduce new regulations regarding
the activities of the Dispute Resolution Service Providers
(“DRSP“).
I. Qualifications and Obligations of DRSPs
The Draft Communiqué is bringing certain provisions to
regulate the obligations of DRSPs and the conditions of being a
DRSP.
The current version of the Communiqué has certain
application requirements for organizations who intend to operate as
a DRSP in Turkey. According to the Communiqué the applicant
should (i) fill the application form attached to
the Communiqué which is also amended by the Draft
Communiqué, (ii) be established in
accordance with the legislation of the Republic of Turkey,
(iii) if it is established abroad, it should be
one of the international organizations recognized by the Republic
of Turkey and specialized in intellectual property law, dispute law
or arbitration law, and have a representative office established in
accordance with the legislation of the Republic of Turkey, and
(iv) have the administrative and technical
competence to successfully manage the dispute resolution process
regarding domain names and should have at least ten arbitrators in
their lists. As per the Communiqué, as a result of the
examination made by the ICTA, those who meet the relevant
conditions will be determined as a DRSP and their contact
information will be published in the official website of the ICTA.
With the Draft Communiqué, the ICTA is set to issue an
activity certificate for those who meet these conditions to operate
as a DRSP.
The Draft Communiqué also brings another condition for
the arbitrators. According to the current version of the
Communiqué, among other conditions, the arbitrators should
be graduates of law, engineering, economics and administrative
sciences or political sciences. With the Draft Communiqué,
the requirement of being graduated from certain academic areas are
removed and instead, graduating from higher education institutions
recognized by the Higher Education Institute and offering at least
four years of undergraduate education in Turkey or from higher
education institutions abroad whose equivalence has been accepted
by the Higher Education Institute will be deemed sufficient.
Another amendment is related to the publication of decisions.
Pursuant to Article 14 of Communiqué, DRSPs are obliged to
send their decision along with the reasoning which they are
required to notify to TRABIS, which is a secure and continuous
system that allows the processing of domain names with the TR
extension and its database, creating a directory, updating and
providing guidance, and real-time domain name application process,
Registry Agency and the concerned parties within one day. In
addition, DRSPs are obliged to promptly publish the internet domain
name which is the subject of the dispute, the date of application,
the date of the decision, the relevant parties and the entire text
of the decision, unless otherwise stated in the decision. With
Draft Communiqué, the publication obligation is changed and
the DRSPs will be obliged to publish the text of the decision on
its own website by taking the necessary measures for protection of
personal data and the obligation to publish the internet domain
name, the date of application, the date of the decision and the
relevant parties is removed. Lastly, the Draft Communiqué
indicates that if the complainant and the complainee are agreed on
ending the arbitration process, the DRSPs should publish this fact
on their websites by also notifying TRABIS and registry agencies.
Accordingly the Draft Communiqué brings an additional
notification obligation for DRSPs. It is also indicated that in
such case, the fees already paid to the DRSP and arbitrators will
not be refunded.
II. Fees
According to the current version of the Communiqué, the
refund of the DRSP fee is at the discretion of DRSPs at any stage
of the dispute resolution process (Article 20/3), and that, with
the decision of the arbitrator or arbitral tribunal, the wrongful
party will pay the fees of the DRSP and arbitrator fees, if any, to
the other party. In addition, the Institution and the arbitrators
do not have any intermediary role in this payment (Article 20/6).
However, the Draft Communiqué removes these articles as
whole.
III. Audits and Sanctions
The Draft Communiqué also amends Article 21 of the
Communiqué titled “Audits and Sanctions”. In the
current version of the Communiqué, if the ICTA determines
that a DRSP acts in breach of the relevant legislation, then the
ICTA might warn the relevant DRSP and publish this on the
ICTA’s website. With the Draft Communiqué, the ICTA`s
authority is extended to terminating the activities of the relevant
DRPS instead of warning.
Accordingly, the dispute resolution processes carried out by the
DRSP, whose activities have been terminated, will also be affected
in line with the decision of the ICTA. In such a case;
(i) the relevant dispute may be finalized
by the same DRSP, (ii) the relevant
dispute may be transferred to a different DRSP for finalization, or
(iii) the already paid arbitrator fees
and DRSP fees may be refunded by the DRSPs.
Similarly, it is foreseen that the DRSP might cease their
activities by notifying the ICTA at least one month in advance and
by also deciding on the resolution processes it carries out. The
DRSPs cannot accept a complaint application after it has notified
the ICTA that it is ceasing its activities. According to the Draft
Communiqué, the DRSPs will also be liable to compensate any
damage they cause by ceasing their activities or the termination of
their activities by the ICTA.
IV. Additional Regulations
The Draft Communiqué also provides that in the absence of
an actively operating DRSP, the alternative dispute resolution
mechanism will be run by the party determined by the ICTA until a
DRSP becomes operational in accordance with the Regulation. A
certificate of activity will be issued to the said party in order
to be able to operate as a DRSP and the related party will be
subject to all obligations stipulated for DRSP in the Regulation,
Communiqué and other relevant legislation. In addition, it
is regulated in the Draft Communiqué that the alternative
dispute resolution mechanism will only be applied to the domain
names allocated after TRABIS became operational, or those are
renewed after that date.
This article was first published in Legal Insights Quarterly
by ELIG Gürkaynak Attorneys-at-Law in December 2021. A link to
the full Legal Insight Quarterly may be found here.
Footnotes
1
See https://www.resmigazete.gov.tr/eskiler/2013/08/20130821-28.htm
(last accessed on October 25, 2021).
2
See https://www.btk.gov.tr/uploads/boarddecisions/gorus-alinmasi-internet-alan-adlari-uyusmazlik-cozum-mekanizmasi-tebliginde-degisiklik-yapilmasina-dair-teblig-taslagi/220-2021-web.pdf
(last accessed on October 25, 2021).
The content of this article is intended to provide a general
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