Draft of The Law of the Internet Arbitration Rules
[Square brackets contain comments or notes and numbers preceded by ‘S’ are references to Sections of the Arbitration Act 1996 of England.]
Any dispute or difference arising out of or in connection with
shall be resolved by arbitration under these rules. For the avoidance of doubt it is expressly provided that the content or handling of any Internet message without restriction as to protocol shall be within the scope of these arbitration rules.
2. Commencement of an arbitration
The arbitration proceedings are regarded as commenced when one or more members of The Internet Arbitration Association serves on one or more members of The Internet Arbitration Association a notice in writing requiring him or them [S14] to appoint an arbitrator. The subject line of the Internet message shall be "Commencing Arbitration Proceedings against you".
3. The Arbitral Tribunal
3.1The first opposing parties in an arbitration will each appoint one arbitrator and there shall be a chairman appointed by those two arbitrators [S15 and S20]. If 14 days after the commencement of the arbitration only one arbitrator has been appointed he shall act as the sole arbitrator.
[Arbitrators need to be fair and seen to be fair and impartial. Arbitrators need to have the "judicial capacity" to hold the ring and despite their title not to act in an arbitrary way. Training as an arbitrator is seen to be essential and this will come about.]
3.2 If 21 days after the commencement of the arbitration no chairman has been appointed he shall be appointed by the arbitrator who last reported under Rule 8, 504hours (21 days), previous to the date and time of the commencement of the arbitration. If the last reporting arbitrator does not act arbitrators previously reporting under Rule 8 in signatory and time order each have 48 hours to make the appointment of chairman. A last reporting arbitrator may appoint himself as chairman.
[It is essential to have a process by which a complete arbitral tribunal is formed. If there is any step that the defending party(s) can take or not take to stop the complete formation of an arbitral tribunal they may be in a position to frustrate the arbitration proceeding. The intention here is to specify very precisely and unfrustratably how the arbitral tribunal is to be formed if the parties do not cooperate in agreeing, and then, in practice, there will be cooperative agreement and matters will proceed rapidly.]
4.1 On a duly appointed arbitral tribunal becoming aware that substantially the same or some of the same matters have been referred to an arbitration with an earlier commencement date than its own it shall order that all or those some of the later disputes or differences referred to it be consolidated with the earlier arbitration [S35].
4.2 An arbitral tribunal that has disputes or differences consolidated with its existing reference under Rule 4.1 may within 14 days refuse to accept the consolidation and those disputes or differences will be determined by the tribunal that ordered the consolidation.
4.3 If all the matters in a reference have been consolidated off under Rule 4.1 and Rule 4.2 or otherwise the arbitral tribunal appointed to deal with those matters shall cease to exist. The arbitrators whose reference have been consolidated off shall be entitled to their fees and expenses [S64].
Communications shall all be made by Internet messages. Any communication between the parties and/or the tribunal over the Internet shall be effective as of the date and time of the timestamp of the Message Disposition Acknowledgement (RFC 2298) of that message. If no Message Disposition Notification of an Internet message with a Disposition Type of "displayed" is received by the sender within two days of the message being sent the effective date and time shall be that of the timestamp of the message sent. The arbitration may be conducted through written, aural or visual communications over the Internet [S76].
The arbitral tribunal shall decide the dispute according to the Law of the Internet which shall be whatever the arbitral tribunal hold it to be from time to time. No holding on the Law of the Internet establishes a precedent [S46]. The arbitration procedure shall follow these Rules under the laws of England.
The arbitral award on a provisional or final basis shall be in the form of an email message sent by one arbitrator, and re-sent in substantially the same form by all the other arbitrators, to all the parties in the reference. Such an award is deemed to be in writing and signed by the arbitrators. On request by any party the arbitrators will within seven days of the request sign a paper counterpart of the award if such is essential for enforcement purposes. The award will state that the seat of the arbitration is London and the date that the award was made [S52]. The tribunal’s award shall not give reasons [S45 and S69].
[There is no legal requirement that any arbitral activity shall have taken place at the place named as the seat of the arbitration. In some countries arbitral awards can only be enforced under their national law if there is a statement of the seat of the arbitration in the award. To bring the arbitral process within the scope of the Arbitration Act 1996 the seat of the arbitration has to be in England and Wales or Northern Ireland [S52]. The date of the award will be determined by the tribunal. The courts cannot consider an appeal on a point of law from an award that does not give reasons.]
Within fourteen days of the date that the award was made the arbitrator(s) will cause a signed report of the substance of the dispute, the facts as found, the Law of the Internet as they have held it to be and the award to be disseminated on the Internet. Information that would reveal the identity of any person other than the arbitrators need not be disclosed. Nothing in the report is to be taken as the arbitrators’ reasons however they are expressed. The arbitrator(s) are under no obligation to respond to any communications sent to them with regard to the report.
[The purpose of publication is so that the Law of the Internet may develop and expand. Some references will be wrongly decided. Some references will be differently decided. Commentators will formulate the Law of the Internet from the decided references. Experience governs.]
9. Complex or simple disputes
An arbitral tribunal may order that any part or all of any reference to them is not to be decided by them but by any other dispute resolution procedure which may include a court process or these Rules with the individual who has been appointed Chairman acting as a sole arbitrator. Such an order may require that the reference be brought back for the tribunal for determination if a binding resolution of the disputes or differences has not been achieved by a date that they set. Any reference brought back to a tribunal under this Rule may be ordered to be continued in any other dispute resolution process until a date that they set.
[Like all other decisions taken by an arbitral tribunal a decision made under this Rule has to be taken judicially. This means that the arbitrators have to give a fair hearing to what the parties wish to say, give careful consideration and then decide. The decision of the tribunal may then be that the disputes or differences are referred to a process that the parties have devised for themselves to suit the circumstances. Bringing the reference back to the arbitral tribunal after a period is to ensure that reference does not become fallow.]
[Comment. The main point of Rule 9 is to provide a way out of the dispute resolution process set out in these rules for disputes clearly not suitable for resolution under them. What the future may hold is not known and there needs to be as escape clause for unsuitable disputes or the process may fall into disrepute.]
10. Matters of law.
10.1 The court does not have the power to make orders about the matters listed in Section 44 of the Arbitration Act 1996.
10.2 The time allowed under Section 73(1) of the Arbitration Act 1996 is seven days.
10.3 The court may not make an order requiring a party to comply with a pre-empting order made by the arbitrator(s) [S42].
10.4 The court may not make an order extending any time limit under Section 79 of the Arbitration Act 1996.
[These rules restrict to the minimum the power of a court to become involved in the arbitration process.]
11. Amendments to these rules
These rules may be amended on the vote of that body of arbitrators who have reported as under Rule 8 above during the preceding three calendar years. No person has more than one vote. Any proposal for amendment to these rules must be supported by at least ten members of that body of arbitrators. The amendment to these rules is effective when two thirds of the body of arbitrators have indicated assent by email to a body of good standing nominated by the proposers. The vote will only be open for 21 days after notice of the proposed amendment is posted on the Internet.
[All sets of rules need a procedure for amendment and development. The "body of arbitrators" will be the most experienced persons there are in running the dispute resolution process. Initially the body of arbitrators will have been selected by the disputing parties under Rule 3 so in no sense is an "official" group controlling the evolution of the Law of the Internet.]
[Comment: No provision is needed in these for the use of mediation or any other form of ADR in these Rules as the parties may always agree to use such procedures if a dispute arises. Rule 9 may be used to achieve mediation or ADR if desired. Parties not willing to use mediation or any other form of ADR can always abort that process whatever has been previously agreed. The authors website has material relevant to mediation if needed.]
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