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Which arbitrations can process the disputes regarding .lt second level domain name?
Under the mutual agreement the parties can refer any dispute regarding a right and / or fact to the arbitration, except for the disputes that, pursuant to laws, cannot be processed in the arbitration (Article 23 Part 1 of the Code of Civil Procedure of the Republic of Lithuania). Resolution of the disputes under the procedure of arbitration is considered a form of alternative dispute resolution (ADR).
Under the agreement of the parties, they may choose the national or foreign institutional arbitration that processes the disputes of such nature according to its competence, or agree regarding the composition of the ad hoc arbitration for a specific domain name dispute.
Information on the national arbitration is available here: arbitrazas.lt ; arbitrazoteismas.lt/en/ ; komercinisarbitrazas.lt/en/ ; vilniausarbitrazas.lt/en/ ; information on the foreign arbitrations is available on their websites.
The process at the institutional arbitrations is carried out according to the procedural regulation approved by a respective arbitration. The arbitrations publish the recommended content of the arbitration agreement.
The process of the ad hoc arbitration is carried out according to the regulations determined / chosen under the agreement of the parties. Cooperation of the parties of the dispute is particularly relevant in this case, because they compose the arbitration under their mutual agreement (determine the number of the arbitrators and the procedure for their appointment), define the procedural regulations, agree on the applied law, place, language, definitions of the proceedings, the manner of the service of documents and other procedures. Therefore, ad hoc arbitration is rarely used in practice.
There were no disputes regarding .lt second level domain name processed under the procedure of arbitration until 1 October 2018. This may be explained by both, subjective and objective reasons:
- Parties of the dispute lack knowledge about the alternative dispute resolution;
- Parties of the dispute do not have / fail to reach the arbitration agreement, which is a precondition for the transfer of the dispute resolution under the procedure of arbitration. Such provision may be included in the contract made between the parties (for example, licensing, franchise agreement, etc.). However, in practice almost all the above-mentioned disputes are related to actual or alleged delict rather than the contract, i.e., the domain holder allegedly violates the other person’s rights to the protected label or performs the actions of unfair competition, when the parties are not related by any mutual agreement. The conflict due to the violation aggravates the cooperation of the parties;
- As previously mentioned, the transfer of the dispute for the arbitration is the alternative dispute resolution. Therefore, parties of the dispute compare the conditions of the arbitration and court proceedings. For example, arbitration fees are much bigger than stamp duties applied in the Lithuanian courts. Even though court proceedings are longer than arbitration (3-month declared proceedings term), the more solid significance of the court’s judgement and lesser costs determine the choice of the manner of resolution;
- A restriction of Article 11 part 1 of the Law on Commercial Arbitration of the Republic of Lithuania was applied until 21 June 2012: “The disputes related to the competition, patents, trademarks of good and services cannot be referred to the arbitration". Whereas majority of the domain name disputes are related to the allegedly unfair competition, actual or alleged violation of the rights of the owners of trademarks. Due to the abstract formulation of the prohibition, the national arbitrations could not process the domain name disputes until 21 June 2012, when the above-mentioned provision was replaced by the Law No. XI-2089. The new edition of Article 12 part 2 of the Law on Commercial Arbitration of the Republic of Lithuania contains a more precisely defined restriction: “The disputes related to the registration of patents, trademarks and design cannot be referred to the arbitration". When the common restriction is absent, the domain name disputes can be referred to the national arbitrations. However, it is possible that a long-standing prohibition caused a sceptical approach to the dispute resolution under the procedure of arbitration;
- The acts regarding the application of provisional safeguards adopted by a foreign arbitration can be acknowledged and implemented in Lithuanian under the request referred to the Court of Appeal of Lithuania (Article 26 parts 1, 2 of the Law on Commercial Arbitration of the Republic of Lithuania, Article 817 of the Code of Civil Procedure of the Republic of Lithuania). Moreover, a judgement of a foreign arbitration can only be implemented in Lithuania after it is acknowledged by the Court of Appeal of Lithuania (Article 809 part 1 of the Code of Civil Procedure of the Republic of Lithuania). Such additional procedures related to the acknowledgement and permission to implement the acts / judgements of the foreign arbitrations also deter from the application to the foreign arbitrations.
.lt registry refrains from the interference in the choosing of the dispute resolution method and does not impose a specific arbitration, providing the parties of the dispute with a possibility to come to a mutual agreement regarding these issues.