What Are The Changes In Internet Domain Names Dispute Resolution Practice? – Media, Telecoms, IT, Entertainment

The Internet Domain Names Dispute Resolution Mechanism
Communiqué (“Communiqué“),
which regulates the procedures and principles regarding the
operation of the dispute resolution mechanism with respect to
internet domain names, and the determination of Dispute Resolution
Service Providers (“DRSPs“) and their
obligations, was published in the Official Gazette dated 21 August
2013 and numbered 28742. The Communiqué Amending the
Internet Domain Names Dispute Resolution Mechanism
Communiqué (“Communiqué Amending the
Communiqué“), which envisages radical changes
in the Communiqué, was published in the second repetitive
Official Gazette dated 30 December 2021 and numbered 31705.

Recent development

Recently, Nic.tr announced that all transactions regarding the
allocation and management of “.tr” domain names would be
carried out over the “.tr Network Information System”
(“TRABIS“). Upon the transition process
from Nic.tr to TRABIS, many transactions and concepts related to
“.tr” domain names were altered and some significant
amendments to the Communiqué were required. Thus, the
Communiqué Amending the Communiqué, which entered
into force by being published in the second repetitive Official
Gazette dated 30 December 2021 and numbered 31705, harmonized some
of the provisions in the Communiqué with TRABIS by detailing
their content and introduced some provisional articles with respect
to the transition process. You can access the Communiqué
Amending the Communiqué here.

What amendments are envisaged in the Communiqué?

• The phrase“universities, public professional
  organizations or international organizations” in
  subparagraph (j) of the first paragraph of Article 4 of the
  Communiqué has been replaced with the term
  “parties.” In accordance with the relevant
  subparagraph, DRSPs are defined as parties that carry out the
  dispute resolution process regarding internet domain names through
  arbitrators or arbitration committees.




• The phrase “applicant’s” in the first
  sentence of the second paragraph of Article 5 of the
  Communiqué has been replaced with the phrase
  “applicant.” Pursuant to the fourth paragraph of
  the same article, those who are determined to meet the necessary
  conditions of the Information Technologies and Communication
  Authority’s (“ITCA“) examination
  will become DRSPs and an activity certificate will be issued to the
  said parties to enable them to operate as DRSPs. The names and
  contact information of these DRSPs will be published on the
  ITCA’s official website.




• Pursuant to the amendment envisaged in subparagraph (e) of the
  first paragraph of Article 10 of the Communiqué, which
  stipulates the qualifications of arbitrators, having graduated from
  higher education institutions in Turkey that offer at least four
  years of undergraduate education or from higher education
  institutions abroad whose equivalence has been accepted by the
  Council of Higher Education is regulated as one of the requirements
  sought for arbitrators.




• Some significant changes are envisaged in the procedure for
  arbitrators’ decisions. Pursuant to the amendments made in the
  third and fourth paragraphs of Article 14 of the Communiqué,
  DRSPs will convey the decision that they are notified of and the
  reasoning for the decision to TRABIS, the relevant Domain
  Registrars (“DRs“) and the respective
  parties, and they will publish them on their website, taking the
  necessary measures for personal data protection. In case the
  complainant and the complainee request the termination of the
  dispute resolution process by mutual agreement before the decision
  is made, the arbitrator or the arbitral tribunal terminates their
  work. This situation is published on the DRSP’s website and is
  notified to TRABIS and the relevant DRs. In the event that the
  arbitrator or the arbitral tribunal terminates their work within
  the scope of paragraph 4 of Article 14 of the Communiqué,
  the fees paid to the DRSP and the arbitrators will not be
  refunded.




• The third paragraph of the Communiqué, which states that
  refunding the DRSP fee at any stage of the dispute resolution
  process is subject to the discretion of the DSRP, and the sixth
  paragraph of the Communiqué, which states that the wrongful
  party will pay the costs related to the DSRP and arbitrator fees,
  if any, to the rightful party, with the decision of the arbitrator
  or arbitral tribunal, have been repealed.




• There are some radical amendments to Article 21 of the
  Communiqué, which stipulates the supervision of DRSPs and
  the sanctions to be applied to them. In addition, all paragraphs of
  the relevant article except for the first paragraph, which states
  that the ITCA is authorized to inspect the DRSPs ex officio or upon
  complaint, have been revised. The following items are in accordance
  with the relevant amendments:




• • As a result of its inspections, the ITCA may take the necessary
    measures and impose the relevant administrative sanctions,
    including terminating their activities, for DRSPs that are found to
    be operating in violation of the Internet Domain Names Regulation
    (“Regulation“), the Communiqué or
    other relevant legislation.

  
  

  • Regarding the dispute resolution processes carried out by a
    DRSP whose activities were terminated by the ITCA, the ITCA may
    take one of the following measures:

  
  

  • 1. The DRSP in question may make a decision.

    
    

    2. Another DRSP approved by the ITCA may make a decision.

    
    

    3. DRSP and arbitrator fees, terminated and paid by the ITCA, are
       to be returned by the relevant DRSP.

  
  

  • DRSPs may terminate their activities provided that they notify
    the ITCA at least one month in advance and decide on the dispute
    resolution processes they carry out through their arbitrators.
    DRSPs cannot accept new applications for complaints after they have
    notified the ITCA.

  
  

  • DRSPs are responsible for the damages they cause if they
    terminate their activities or if they are terminated by the
    ITCA.




• Provisional Article 2, which regulates the absence of a minimum
  operating DRSP, has been added to the Communiqué. According
  to the relevant article, in the absence of a minimum operating
  DRSP, a party determined by the ITCA will operate the alternative
  dispute resolution mechanism defined in the sixth section of the
  Regulation until a DRSP becomes operational. An activity
  certificate is issued to the said party to enable it to operate as
  the DRSP. The said party is subject to all obligations defined for
  the DRSP in the Regulation, the Communiqué and other
  relevant legislation.




• Provisional Article 3, which regulates the application to the
  DRSP regarding renewal procedures, has been added to the
  Communiqué. According to the relevant article, no
  application can be made to the alternative dispute resolution
  mechanism defined in the sixth section of the Regulation for domain
  names that were allocated before TRABIS becomes operational.
  However, an application to the dispute resolution mechanism can be
  made for domain names renewed after TRABIS becomes
  operational.




• The “DRSP Application Form” in the annex of
  the Communiqué has been modified. You can access the updated
  version of the form here.




• The Communiqué Amending the Communiqué entered
  into force as of the date of its publication in the Official
  Gazette, and the duty and authority to execute the provisions of
  the Communiqué Amending the Communiqué belongs to the
  ITCA.

Conclusion

The Communiqué Amending the Communiqué envisages
radical amendments to the Communiqué regulating the
operation of the dispute resolution mechanism for “.tr”
domain names, the determination of DRSPs and their obligations.
Subsequent to the announcement that TRABIS will become operational
very soon, provisional articles regarding the transition process
have been added to the Communiqué and crucial amendments
aiming to harmonize some articles of the Communiqué with
TRABIS have been envisaged.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.