By Vikrant Rana and Sanjana Kala
Recently, the National Internet Exchange of India (NIXI), on September 16, 2020, uploaded amendments to the INDRP Rules of Procedure (hereinafter “Rules”), INDRP Policy (hereinafter “Policy”) and the Code of Ethical Conduct for Arbitrators on their website. The said amendments were approved by NIXI Board and Ministry of Electronics and Information Technology, Government of India and came into effect after 15 calendar days from the date of uploading i.e. on October 01, 2020.
Amendments to INDRP Policy
While the Amended Policy incorporates several non-substantive changes such as re-wording of headings/ language and re-numbering of clauses, it includes some notable additions as below:
|9. Involvement of Registry and the Registrar in Arbitration Proceedings
The Registry and the Registrars shall not participate in the domain name dispute resolution proceedings in any capacity or manner other than providing the information relevant to the registration and use of the domain name upon the request of the Arbitrator. Neither the Registry nor the Registrar shall be liable for any decisions rendered by an Arbitrator.
|9. Role of NIXI or .IN Registry in Arbitration Proceedings and Exclusion of Liability
NIXI or .IN Registry will not participate in the administration or conduct of any arbitral proceeding and will remain neutral to the arbitration proceedings. In addition, NIXI or .IN Registry will not be liable to either party for any act or omission in connection with any arbitration proceedings under these Policy/Rules or for the result of any decisions rendered in the Arbitration proceedings.
No party shall implead NIXI or .IN Registry or its Registrar as a party in any legal proceeding. In the event that NIXI or .IN Registry is impleaded in any such legal proceeding, NIXI or .IN Registry reserves the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend itself.
|Addition to paragraph 9 inter alia stating that no party shall implead NIXI or the Registry as a party in a legal proceeding. Further, in the event NIXI/ Registry is made a party, they reserve their rights to raise any and all defences as deemed appropriate.|
The remedies available to a Complainant pursuant to any proceeding before an Arbitrator shall be limited to requiring the cancellation of the Registrant’s domain name or the transfer of the Registrant’s domain name registration to the Complainant. Costs as may be deemed fit may also be awarded by the Arbitrator.
The remedies available to a Complainant pursuant to any proceeding before an Arbitrator shall be limited to praying for the cancellation of the Registrant’s domain name or the transfer of the Registrant’s domain name registration to the Complainant. Costs as may be deemed fit may also be awarded by the Arbitrator. However, the implementation of such award of cost will not be supervised or controlled by .IN Registry.
|Disclaimer added to paragraph 10 stating that costs may be awarded in the arbitration proceedings, however the Registry shall not be responsible for the implementation of such an award.|
|11.Execution of Award
The Registrar shall duly execute the award as and when directed by NIXI/ .IN Registry in terms of governing provision. In events if the Registrar fails to implement the award or directions of NIXI / .IN Registry in absence of a justifiable ground(s), NIXI / .IN Registry shall execute the award by itself.
|Addition of paragraph 11 inter alia stating that the Registrar shall execute the award as directed by NIXI/ Registry. Unless Registrar fails to do so, NIXI/ Registry shall execute the award at their end.|
|12. Transfers During a Dispute
The Registrant shall not transfer a domain name registration to another holder:
(i) In case an Arbitration proceeding is initiated pursuant to this policy, for a period of fifteen (15) working days (“working day” means any day other than a Saturday, Sunday or public holiday) after such proceeding is concluded; or
(ii) during a pending court proceeding or arbitration commenced regarding the domain name, unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator.
The Registry reserves the right to cancel any transfer of a domain name registration to another holder that is made in violation of this paragraph.
|13. Domain Transfer
The Registry shall not transfer a domain name registration to either party in existence of below mentioned event:
(a) During a pending arbitration proceedings concerning the domain name unless a settlement is reached out between the parties; or
(b) In case an Arbitration proceeding is concluded pursuant to this policy, for a period of Ninety (90) days from date of intimation of such award;
(c) In event where an award of transfer of domain is challenged by either party
In case there is a breach or violation of these governing rules, the Registry reserves the right to cancel any transfer of a domain name.
|Conditions added to when the domain shall not be transferred such as during 90 day appeal period or in view of settlement between parties.|
|15. Policy for .IN or BHARAT (Available in all Indian Languages) IDN
This policy (INDRP) shall be applicable to all/any disputes relating to .IN or .BHARAT (Available in all Indian Languages) IDN’s in any of the other Indian Languages. Domains under .IN or BHARAT (Available in all Indian Languages) IDN’s in any of the other Indian Languages must confirm the provisions under INDRP and the Rules of procedure laid out therein.
Any or all disputes shall be subject to the jurisdiction of Delhi courts only
Amendment to INDRP Rules
a. When forwarding a Complaint to the Respondent, .IN Registry shall ensure to employ reasonably available means to serve notice of complaint to the Respondent. Service of notice, or employing the following measures to do so, shall discharge this responsibility:
i. sending the Complaint to all postal-mail and facsimile addresses shown in the domain name’s registration data through .IN Registry’s WHOIS database at www.registry.in (http://www.registry.in) ; and
ii. sending the Complaint in electronic form (including annexes to the extent available in that form) by e-mail to:
A. the e-mail addresses shown in the domain name’s registration data through .IN REGISTRY’s WHOIS function at www.registry.in (http://www.registry.in) and
B. postmaster@[the contested domain name]
iii. sending the Complaint to any address the Respondent has notified to the .IN Registry in writing (including email) at which it prefers and, to the extent possible, to all other addresses provided to the .IN Registry by Complainant under Paragraph 3(b)(v).
a. While forwarding a Complaint to the Respondent, .IN Registry shall employ electronic method to serve notice of complaint. Service of notice, or employing the following measures to do so, shall discharge this responsibility: Sending the Complaint in electronic form (including annexure) by e-mail to email addresses shown in WHOIS details at www.registry.in and in event where no email address is available, then such mail be forwarded to postmaster@[the contested domain name]
|Requirement of serving the complaint to the Respondent in hard copy, i.e. by way of post has been dispensed with.
The Amended Rules provide for sending the complaint to the Respondent in electronic form (including annexures) by e-mail to email addresses of registrant shown in the WHOIS details. If no email address is available, then the complaint and annexures may be forwarded to the email address postmaster@[the contested domain name]
|3. The Complaint
a. Any person or entity may initiate an arbitration proceeding by submitting a Complaint to the .IN Registry in accordance with the Dispute Resolution Policy and these Rules of Procedure. The envelopes containing the Complaint should be clearly superscribed on the right hand side corner .IN Domain Names Dispute Complaint.
b. The Complaint and the annexures attached to it shall be submitted in three hard copies and one softcopy and shall incorporate the following:
|3. Filing and Service of Complaint
Filing of Complaint:
a. The complaint along with all supporting documents has to be submitted to NIXI in an electronic form.
b. Either Party or its authorized representative shall submit a power of attorney while filing a complaint or response.
|The complaint is no longer required to be filed in hard copy in triplicate. The Amended Rules now provide for filing of complaint in electronic form.
Further, the Amended Rules specify that either party or their authorised representatives shall submit a Power of Attorney at the time of filing the complaint/ response.
|4. Notification of Complaint
a. The .IN Registry shall on receipt of the prescribed fees, forward the Complaint to the Respondent, within three (3) working days if it is found in accordance with the Dispute Resolution Policy and Rules of Procedure.
b. If the .IN Registry finds the Complaint to be not in accordance with the Dispute Resolution Policy and the Rules of Procedure, it shall within three (3) working days notify the Complainant of the deficiencies identified. The Complainant shall have five (5) working days within which to correct any such deficiencies, failing which the arbitration proceeding will be deemed withdrawn without prejudice to submission of another Complaint by the Complainant in respect of the same domain name. The .IN Registry on receipt of the complaint after correction of the deficiencies shall appoint an arbitrator from the list of arbitrators and forward the Complaint and documents to the Respondent and to the Arbitrator for adjudicating upon the
dispute in accordance with the Arbitration and Conciliation Act 1996, Rules framed thereunder, Dispute Resolution Policy & rules framed thereunder.
c. The date of commencement of the arbitration proceeding shall be the date on which the Arbitrator issues notice to the Respondent as stipulated under Paragraph 5 (c) of these Rules of Procedure.
|3. Filing and Service of Complaint
Service of Complaint:
a. The complainant shall file the electronic copy of the complaint with annexures to NIXI along with prescribed fees. Thereafter, the complaint shall be evaluated for compliances and in case of objections, if any, the complainant would be notified within a period of five (5) working days where after, he shall rectify/complete the needful and submit the fresh/amended copy.
b. Once the complaint is in compliance of laid down rules under INDRP, NIXI shall within five (5) working days appoint an arbitrator from the list of empanelled arbitrators and notify the parties by email.
c. Within 2 working days from the receipt of intimation as stated in above corresponding Para, the complainant shall send a soft copy of final accepted complaint along with annexures to the Learned Arbitrator copying NIXI vide email.
d. In addition to aforesaid, the complainant shall also send both hard copy and soft copy of the complaint with annexures to the respondent(s). The proof of service of both hard copy and soft copy shall be communicated by the complainant vide email to all including NIXI
|The Amended Rules provide for:
i. Notification of deficiency in the complaint to be given to Complainant within 5 working days (as opposed to 3 working days in the old Rules);
ii. Appointment of Arbitrator within 5 working days (no time period given in Old Rules);
iii. Complainant to send soft copy of complaint along with annexures to Arbitrator within 2 working days. (This is in contrast to the old Rules where the Registry/ NIXI would forward such documents to Arbitrator);
iv. Complainant to send both hard copy and soft copy of complaint along with annexures to Respondent and provide proof of service thereof. (This is in contrast to the old Rules where the Registry/ NIXI would ensure service of complaint to Respondent);
a. The (maximum) word limit shall be 5,000 words for all pleadings individually (excluding annexures). Annexures shall not be more than 100 pages in total. Parties shall observe this rule strictly subject to Arbitrator’s discretion.
|Maximum word limit set to 5,000 words for all pleadings. Annexures limited to a 100 pages in total. The above is subject to discretion of Arbitrator.
The old Rules did not have any such filing restrictions.
|10. Retention of Records
Empanelled arbitrators should retain all documents concerning to the cases allotted to them.
|10. In-Person Hearings
There shall be no in-person hearings (including hearings by teleconference, videoconference, and web conference), unless the Arbitrator determines, in his sole discretion and as an exceptional matter, that such a hearing is necessary for deciding the Complaint.
|11. In-Person Hearings
There shall be no in-person hearings (including hearings by teleconference, videoconference, and web conference), unless the Arbitrator agrees on request of either or both parties, that such a hearing is necessary for deciding the Complaint. In event, a personal hearing takes place; the same shall be subject to maximum of two hearings.
|Personal hearings limited to a maximum of two hearings.|
d. In case the arbitration proceedings are deemed to be withdrawn as stipulated under Paragraph 4 (b) above, the Registry Administration Fee shall be forfeited by the .IN Registry.
e. In case the complaint is withdrawn before initiation of arbitration proceedings under any circumstances, the Registry Administration Fee shall be forfeited by the .IN Registry. However, if such withdrawal request is received by the complainant during the proceedings or after notification of appointment of arbitrator, no refund of fees is applicable
|The Amended Rules specify that in case a request for withdrawal of complaint is filed after notification of appointment of arbitrator, then no refund of official fee will be applicable.|
In view thereof, it appears that by way of the Amended INDRP Policy and Rules, the Registry has now formalised several practices that were adopted due to the circumstances surrounding the COVID-19 pandemic. Some salient points of the Amended INDRP Policy and Rules have been summarized below:
- No requirement of filing complaint in hard copy or triplicate with the Registry;
- Electronic/ soft copy filing (by way of email) of complaint and annexures will be sufficient;
- Parties have to submit a Power of Attorney at the time of filing the complaint/ response;
- Complainant shall forward soft copy of complaint (along with annexures) to Arbitrator (earlier forwarded by the Registry);
- Complainant shall ensure service of complaint to Respondent and provide both hard copy and soft copy of complaint (along with annexures) to Respondent and provide proof of service thereof (earlier done by the Registry);
- Maximum word limit set to 5,000 words for all pleadings;
- Annexures should not exceed a 100 pages in total;
- Personal hearings limited to a maximum of two hearings.
It is evident that the Amended INDRP Policy and Rules have given precedence to electronic modes of filing and communication. This is surely a favourable procedural change for parties located out of India who can now partake in the arbitration proceedings remotely. Further, the responsibility of serving documents to the Arbitrator and Respondent now rests with the Complainant, which might be able to mitigate the delay between filing a complaint and commencement of proceedings in this regard. Since the Complainant is an aggrieved party in the dispute, it is likely that they would ensure timely service of documents.
The Amended INDRP Policy and Rules have surely made progressive changes to the arbitration process which may result in a more efficient and streamlined process for all parties involved. The amendments appear to be in consonance with accepted practices as followed in UDRP proceedings and are sure to strengthen the INDRP framework in India.