After
having proposed changes to the .ZA Alternative
Dispute Resolution Regulations in December last year, the South
African Minister of Telecommunications and Postal Services has, with effect from
today, amended the Regulations in some significant respects.
Many
of the amendments appear to have been lifted from the UK DRS (the
.uk dispute resolution system) and they are generally to be welcomed, although
there is some uncertainty as to how some of the amendments will work in
practice. It would appear that the SAIIPL Supplementary
Procedure has not yet been updated to incorporate the changes and
this will of course be required going forward.
Below
is a summary of the amendments:
·
Mandatory informal mediation to
be run by the government domain name authority ZADNA introduced. If settlement reached, no
complaint fees payable;
·
The rebuttable presumption of an
abusive registration if the registrant has been found to have made an abusive
registration in three or more disputes in the previous 12 months has now been
extended to the previous two years;
·
The possible decisions that an
adjudicator can reach have been expanded to include cancellation of the
disputed domain name. Asking for this is of course risky, if you’re acting for
the complainant, given that the domain will probably fall back into the pool of
available domains;
·
A real penalty for reverse domain
name hijacking has been provided. If three disputes by the same complainant
have been refused within a period of two years on the basis of reverse domain
name hijacking, the provider will not accept any further complaints from that
complainant for a period of two years except on good cause shown;
·
The confusion created by
requiring a commissioner of oaths to attest to the pleadings in countries where
there is no such office has been remedied;
·
If the registrant does not respond
to a complaint then a summary decision must be issued with 50% of the complaint
fee being refunded. A summary decision is not defined but will presumably have
the same meaning as in the context of the UK DRS, being a short decision
without full written reasons;
·
A period in which to file a
statement of intention to appeal has now been provided, being four days after
receipt of a decision; and
·
If legal proceedings are
instituted during a dispute, the adjudicator must proceed to decide the dispute
if the adjudicator has already been appointed once the proceedings are
instituted.
