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.
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.
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).
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