Arbitration Rules

1. What are the KLRCA Arbitration Rules?

The KLRCA Arbitration Rules are a set of procedural rules covering all aspects of the arbitration process, which parties may agree to in part or in whole in order to help resolve their domestic or international disputes. The KLRCA Arbitration Rules adopts the UNCITRAL Arbitration Rules 2010, in its second part, which provide, among other things:

  • A model arbitration clause for contracts;
  • Procedures for the appointment and challenge of arbitrators;
  • Procedures for the conduct of arbitration proceedings.

2. Where can I find the KLRCA Arbitration Rules model clause?

Parties who wish to resort to the KLRCA Arbitration Rules may resort to incorporate the KLRCA model clause in their agreement. The model clause can be found on Page 2 of the Rules.

3. What do I do if I do not have a model arbitration clause in my agreement?

Parties who wish to resort to the KLRCA Arbitration Rules may resort to incorporate the KLRCA model clause in their agreement. The model clause can be found under Schedule 3 of the Rules.

4. Why do the rules have Part I and Part II? Which part is applicable to the arbitration?

The KLRCA Arbitration Rules has two Parts. Part I specifies the KLRCA Arbitration Rules and Part II specifies the UNCITRAL Rules. Part II is an incorporation of the UNCITRAL Arbitration Rules 2010, without any modifications. Modifications to the UNCITRAL Rules however appear under Part I of the Rules. Thus, Part II of the Rules shall be read subject to Part I of the Rules.

5. What type of disputes can be resolved by arbitration under the KLRCA Arbitration Rules?

The majority of disputes arise out of construction, commodities, insurance, energy or any other kind of commercial dispute.

6. What is the effect of exclusion of Part III of the Malaysian Arbitration Act 2005?

The Rules (Rule 1(1)(c)) precludes the application of Section 41, 42, 43 and 46 of the Malaysian Arbitration Act 2005 where the seat of arbitration is in Malaysia, bringing domestic arbitrations in line with international standards.

By agreeing to arbitrate under the Rules, parties therefore agree to waive their rights to apply to the High Court of Malaya for the reference and appeal of points of law.

This brings the arbitration under the Rules in line with the UNCITRAL Model Law and the prevailing trends of minimal intervention by the curial courts. It ensures finality in respect of domestic arbitral awards.

7. How is the seat of arbitration determined?

Where parties have not clearly stipulated the seat of the arbitration, then pursuant Rule 6(1) of the Rules, the seat of arbitration shall be Kuala Lumpur, Malaysia unless the arbitral tribunal determines, having regard to all the circumstances of the case, that another seat is more appropriate.

The Rules provides for certainty and smooth progression of arbitral proceedings.

8. What are the advantages of using the KLRCA Arbitration Rules?

The KLRCA Arbitration Rules incorporates the UNCITRAL Arbitration Rules which are comprehensive, time tested and internationally accepted. The KLRCA provides administrative assistance to the tribunal and parties by making available facilities, through the appointment of arbitrators, by getting involved in challenges of arbitrators, by providing a reasonable fixed schedule of fees and by providing a balanced account of the fees and costs applied to the proceedings. The KLRCA’s roles and functions are identified in Part I of the Rules.

9. How do I begin a matter under the KLRCA Arbitration Rules?

A party initiating the dispute shall be required to submit a written request to the Director of the KLRCA together with a copy of the Notice of Arbitration served on the Respondent in the form and manner required under Article 3 of Part II, pay a non-refundable registration fee of USD500.00 for international arbitration or RM1000.00 for other types of arbitration and provide the following documentation:

  • The arbitration clause and contract document containing the arbitration clause; and
  • Confirmation and proof of service of the Notice of Arbitration.

10. When is the Arbitration Deemed to have commenced under the KLRCA Arbitration Rules?

Arbitration under the auspices of the KLRCA shall be deemed to commence on the date the Director of the KLRCA receives a written request from the party initiating the arbitration complete with the relevant documentation and registration fee.

11. How much will it cost to arbitrate under the KLRCA Arbitration Rules?

The KLRCA Schedule of Fees will be applicable to the arbitration unless the arbitral tribunal and parties agree otherwise and such agreement must be reached within the period of 30 days from the appointment of the arbitral tribunal.

The cost to arbitrate would include the payment of a non-refundable registration fee by the Claimant amounting to USD500.00 for an international matter and RM1000.00 for a domestic matter.

The arbitral tribunal’s fees and the KLRCA’s administrative costs shall be calculated on an ad valorem basis depending on the amount of the dispute. The scale for purposes of determination of fees appears in Schedule 1 Part III of the KLRCA Arbitration Rules. A note to the Schedule of Fees has been included in Appendix D of Schedule 1 Part III to regulate the payment of disbursements to the arbitral tribunal and KLRCA’s administrative costs and expenses.

12. How are arbitrators appointed under the KLRCA Arbitration Rules?

The arbitrator’s appointment shall be made by the Director of the KLRCA. The Director of the KLRCA will now confirm the appointment of arbitrators appointed by parties or any appointing authority agreed by them. An agreement between the parties to appoint an arbitrator by them or any appointing authority agreed by them shall be treated as an agreement to nominate an arbitrator and not an agreement to appoint an arbitrator.

13. Can an appointed arbitrator be challenged under the rules?

Yes. Under the revised Rules, the arbitrator’s appointment can be challenged by the parties. The detailed procedure for challenge has been incorporated under Rule 5. Upon receipt of the notice of challenge, if the other party does not agree and if an arbitrator refuses to withdraw, the party challenging may apply to the Director of the KLRCA to decide on the challenge.

14. What happens if parties fail to pay the required provisional or additional deposits?

Payments of deposits are regulated under Rule 13. If parties fail to pay the required deposits, the Director of the KLRCA shall ask the other party to pay on behalf of the other.

The arbitral tribunal shall not proceed with the arbitral proceedings unless the provisional deposits are paid in full by one or more of the parties. In instances where the claimant pays on behalf of the respondent, the Director of the KLRCA may advise the arbitral tribunal to proceed with the matter without consideration of the counterclaim raised by the respondent.

However, if the claimant defaults in paying its share, the arbitral tribunal has the authority under the Rules to suspend the arbitration proceedings until the required payments are made or terminate the proceedings or any part thereof.

15. Are arbitration proceedings confidential in nature?

Yes. Arbitration under the KLRCA Arbitration Rules is private and confidential in nature as provided under Article 28 and Rule 15. The arbitral tribunal, the parties and the KLRCA shall keep confidential all matters relating to the arbitral proceedings. Confidentiality also extends to any award, except where its disclosure is necessary for purposes of implementation and enforcement. Article 28 of the KLRCA Arbitration Rules specifies that hearings shall be held in camera unless the parties agree otherwise

16. Are parties restricted to appointing arbitrators from KLRCA's panels of arbitrators when arbitrating under the KLRCA Arbitration Rules?

No. There are no restrictions imposed and parties are free to appoint arbitrators of their choice. However, under the revised Rules, parties’ appointment of arbitrators shall be deemed as a nomination only, subject to confirmation of appointment by the Director of the KLRCA.

17. How long would the entire proceedings take?

There are no restrictions on time taken to complete an arbitration under the KLRCA Arbitration Rules. However, there are certain mechanisms which ensure that arbitration proceeds in a time efficient manner.

For instance, under Rule 7 the arbitral tribunal is accorded with powers to conduct the matter in such manner as it considers appropriate and may limit the time available for each party to present its case. Under Rule 11 the arbitral tribunal is required to render its final award within a period of 3 months from the date of delivery of the closing oral submissions or written statements.

There are extensions of time allowed which are subject to the approval of the Director of the KLRCA. Another provision dealing with time under Part II, Article 25, is that the periods of time fixed by the arbitral tribunal for the communication of written statements (including the statement of claim and statement of defence) shall not exceed 45 days.

18. How does a party apply for an emergency arbitrator?

The new provision for the appointment of emergency arbitrators is found under Schedule 2. Rule 7 and Schedule 2 allows the party in need of emergency interim relief to make such an application and the application must be made concurrently with or after the filing of a Notice of Arbitration but not after the constitution of the arbitral tribunal.

19. What are the types of interim measures a party may apply for?

The interim measures are as found under Article 26 under Part II.

20. What are the powers of the emergency arbitrator?

The emergency arbitrator shall act to determine all applications for emergency interim relief until the constitution of the proper arbitral tribunal. Emergency interim relief order or award granted by an emergency arbitrator shall have the same effect as an award and shall be binding on the parties (refer to Schedule 2 and Rule 12).

21. Are the decisions of the emergency arbitrator appealable?

The decisions of the emergency arbitrator are not appealable (Schedule 2 and Rule 12). It may however be modified, varied or vacated by the subsequent arbitral tribunal upon review (refer to Schedule 2 and Rule 7).

i-Arbitration Rules

1. What are the KLRCA i-Arbitration Rules?

The KLRCA i-Arbitration Rules are a set of procedural rules covering all aspects of the arbitration process, which parties may agree to in part or in whole in order to help resolve their domestic or international disputes. KLRCA i-Arbitration Rules adopt UNCITRAL Arbitration Rules 2010, in its second part, which provide, among other things:

  • A model arbitration clause for contracts;
  • Procedures for the appointment and challenge of arbitrators;
  • Procedures for the conduct of arbitration proceedings; and
  • Requirements about the form, effect and interpretation of an arbitration award.

The KLRCA i-Arbitration Rules are of Shariah compliant and suitable for arbitration of disputes arising from commercial transactions premised on Islamic principles. The rules takes into account and allows for the reference process to Shariah Advisory Council or Shariah expert whenever the arbitral tribunal has to form an opinion on a point related to Shariah principles.

2. Are the arbitration proceedings confidential in nature?

Yes, arbitration under the KLRCA i-Arbitration Rules is private and confidential in nature as provided under Article 28 and Rule 16. The arbitral tribunal, the parties and the KLRCA shall keep confidential all matters relating to the arbitral proceedings. Confidentiality also extends to any award, except where its disclosure is necessary for purposes of implementation and enforcement. Article 28 of the KLRCA i-Arbitration Rules specifies that hearings shall be held in camera unless the parties agree otherwise.

3. Why does the rule have PART I and PART II? Which part is applicable to the arbitration?

KLRCA i-Arbitration Rules has two Parts. Part I specifies the KLRCA Rules and Part II specifies the UNCITRAL Rules. Part II incorporates UNCITRAL Arbitration Rules 2010, without any modifications. Modifications to the UNCITRAL Rules however appear under Part I of the Rules. Thus, part II of the Rules shall be read in conjunction with part I of the Rules.

4. What type of disputes can be resolved by arbitration under the KLRCA rules?

Any dispute which arises out of an agreement which is premised on the principles of Shariah.

5. What are the advantages in using the KLRCA rules?

The KLRCA i-Arbitration Rules incorporates the UNCITRAL Arbitration Rules which is comprehensive, time tested and internationally accepted. KLRCA provides administrative assistance to the tribunal and parties with available facilities, appointment of arbitrator, challenge of arbitrator, reasonable schedule of fees and accounting of the fees and costs applied to the proceedings. KLRCA’s roles and functions are identified in the Part I of the rules.

6. What is the effect of exclusion of PART III if the Malaysian Arbitration Act 2005?

The Rules (Rule 1(1)(c)) precludes the application of Section 41, 42, 43 and 46 of the Malaysian Arbitration Act 2005 where the seat of arbitration is in Malaysia, bringing domestic arbitrations in line with international standards. By agreeing to arbitrate under the Rules, parties therefore agree to waive their rights to apply to the High Court of Malaya for the reference and appeal of points of law. This brings the arbitration under the Rules in line with the UNCITRAL Model Law and the prevailing trends of minimal intervention by the curial courts. It ensures finality in respect of domestic arbitral awards.

7. How is the seat of arbitration determined?

Where parties have not clearly stipulated the seat of the arbitration, then pursuant Rule 6(1), the seat of arbitration shall be Kuala Lumpur, Malaysia unless the arbitral tribunal determines, having regard to all the circumstances of the case, that another seat is more appropriate. The Rules provides for certainty and smooth progression of arbitral proceedings.

8. Where can I find the KLRCA i-Arbitration Rules model clause?

The parties who wish to resort to KLRCA i-Arbitration Rules may resort to incorporate KLRCA’s model clause in their agreement. The model clause can be found under Schedule 3 of the rules.

Fast Track Arbitration Rules

1. What are the KLRCA fast track arbitration rules?

The KLRCA Fast Track Arbitration Rules are designed for parties who wish to obtain an award in the fastest way with minimal costs. The Rules provide that arbitration (with a substantive oral hearing) must be completed within a maximum of 160 days and tried before a sole arbitrator (unless parties prefer a larger panel). The Rules also caps the tribunal’s fees and recoverable costs to a fixed scale. Other attractive features also include tighter obligations for disclosure so as to avoid surprises and controlled usage of expert evidence to ensure that the parties and tribunal are focused only on specific issues.

2. Where can i find the KLRCA fast track arbitration rules model clause?

One of the essential requirements for dispute resolution through arbitration is the existence of an arbitration agreement between the parties. An arbitration agreement must be in the form of an arbitration clause in an agreement or in the form of a supplementary agreement. KLRCA’s Fast Track Arbitration Rules model clause, which is recognisable and enforceable internationally, is as follows: “Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the KLRCA Fast Track Arbitration Rules.” Any party who wants to substitute an existing arbitration clause for one referring the dispute to arbitration under the KLRCA Fast Track Arbitration Rules may adopt the following form of agreement:

“The parties hereby agree that the dispute arising out of the contract dated [insert date of contract] shall be settled by arbitration under the KLRCA Fast Track Arbitration Rules.”

This form may also be used where a contract does not contain an arbitration clause and parties wish to have an ad hoc submission to arbitration.

3. Is there a difference between the KLRCA fast track arbitration rules and the KLRCA arbitration rules?

Number of Arbitrators

Unless the parties agree otherwise, an arbitration conducted under KLRCA Arbitration Rules is heard by a panel of 3 arbitrators whereas arbitration under the KLRCA Fast Track Arbitration Rules will be conducted by a sole arbitrator (cf. Article 4).

Documents-only Hearing

Under the KLRCA Fast Track Arbitration Rules, claims which are less than/unlikely to exceed RM150,000 (in a domestic arbitration) and USD75,000 (in an international arbitration) shall immediately proceed as a documents-only arbitration unless a substantive oral hearing is deemed necessary by the arbitrator upon consultation with the parties.

Time Frames

The time frames for submission of statements, hearings and the making of awards differ. Arbitration under the KLRCA Fast Track Arbitration Rules must be completed within a maximum of 160 days whereas arbitrations under the KLRCA Arbitration Rules are estimated to take between a year (365 days) to a year and a half (547 days) to be completed.

Costs

Arbitration under the KLRCA Fast Track Arbitration Rules is more cost effective. Furthermore, the rules have been drafted so as to make the assessment of costs more predictable. The KLRCA Fast Track Arbitration Rules comprises a schedule of Arbitrator’s Fees which arbitrators must have regard for albeit are not bound by while fixing fees. Also, the costs of arbitrations under the KLRCA Fast Track Arbitration Rules are capped. For documents-only hearings, costs must not exceed 30% of the total amount of the claim and for an arbitration with substantive oral hearing, costs must not exceed 50% of the total amount claimed. For more information on costs and fees (cf. Articles 14 and 19).

Evidence

In view of expediency, the KLRCA Fast Track Arbitration Rules restricts the use of expert evidence or supplementary expert evidence. In order for such evidence to be adduced as evidence, the party wishing to do so must first request for permission or leave from the arbitral tribunal within 14 days after the Statement of Reply or service/exchange of expert reports have been delivered.

4. What type of disputes can be resolved by arbitration under the KLRCA fast track arbitration rules?

The majority of disputes arise out of construction, commodities, insurance, maritime, energy and commercial disputes.

5. What are the advantages in using KLRCA fast track arbitration rules?

If the arbitration clause does not mention the KLRCA Fast Track Arbitration Rules, the hearings are conducted according to existing arbitration laws and procedure. Incorporating the KLRCA Fast Track Arbitration Rules into your arbitration clause has great benefits. The Rules allow you to consolidate disputes, to avoid compelling arbitration in court, and to receive a quick award with minimal costs. You would also have the opportunity to be awarded legal fees and your share of the Panel’s expenses.

6. How much will it cost to arbitrate under the KLRCA fast track arbitration rules?

The arbitration fee is divided into two categories – the administrative costs and the tribunal’s fee. The administrative costs is 7.50% of the tribunal’s fees and covers KLRCA’s cost of administering the arbitration. The tribunal’s fees are divided into different scales for international and domestic arbitrations.

The schedule of fees and administration costs can be found in Part II of the KLRCA Fast Track Arbitration Rules.

7. Are parties restricted to appointing arbitrators from KLRCA’s panels of arbitrators when arbitrating under the KLRCA fast track arbitration rules?

No, there are no restrictions imposed and parties are free to appoint arbitrators of their choice. However, in the event that parties cannot come to an agreement or decide (cf. Article 4), the Director of the KLRCA will then refer to KLRCA’s panel of arbitrators to make a suitable appointment. KLRCA has an open panel of over 800 domestic and international arbitrators. As a pre-requisite, KLRCA requires for its panellists to obtain fellowship with CIArb. KLRCA’s panellists are also veterans in various specialised industries.

8. How do i commence arbitration proceedings under the KLRCA fast track arbitration rules?

Provided there is a prior agreement for reference to arbitration under the KLRCA Fast Track Arbitration Rules, parties may refer unresolved disputes to KLRCA for arbitration. The Claimant shall be required to issue a notice in writing to the Respondent stating its intention to commence an arbitration under these Rules and a copy must be delivered to the Director.

9. What if is determined midway through the arbitration proceedings that the quantum of claim is more or less than the original estimation?

If the quantum of the claim or counterclaim is more than the initial estimation, the Director will direct the Claimant or the Respondent, as the case may be, to pay the additional fees before the case may proceed. However, if the quantum of the claim or counterclaim is less than the initial estimation, the additional tribunal fees paid will be refunded to the parties upon issuance of the award, subject to the discretion of the Director.

10. How is the seat of arbitration determined?

Pursuant Article 6 Rule 2 of the Rules, the seat of arbitration shall be Malaysia. The law of the arbitration under these Rules shall be the Malaysian Arbitration Act 2005 (Amendment 2011) or any statutory modification or re-enactment of the Act.

11. Does KLRCA have the experience and expertise to administer arbitrations in specialised sectors?

Yes, KLRCA has vast experience in administering arbitrations in specialised industries. However, unlike other Centres, KLRCA does not think it is necessary to launch a specialised division to cater to different specialised industries. This is because the Rules were already drafted in consultation with various specialised industries for example, the maritime sector. Its rules of arbitration were tailored to govern not only ordinary commercial disputes but also specialised sectors, taking into account the nature of the industry.

In addition, KLRCA’s panel consists of distinguished industry experts, ranging from the construction, energy, maritime and commercial sectors.

Mediation Rules

1. What are the KLRCA mediation rules?

The KLRCA Mediation Rules are a set of procedural rules covering all aspects of the Mediation process to help parties resolve their domestic or international disputes.

2. Where can i find the KLRCA mediation rules model clause?

Parties who wish to resort to the KLRCA Mediation Rules may incorporate the KLRCA model clause in their agreements. The Model Clause can be found under Schedule B of the Rules.

3. What do i do if i do not have a model mediation clause in my agreement?

These Rules may also apply where the parties are agreeable that the dispute must be resolved via mediation according to the KLRCA Mediation Rules as a facilitative way of achieving an agreed outcome.

4. What type of disputes can be resolved by mediation under the KLRCA mediation rules?

The majority of disputes arise out of construction, commodities, insurance, landlord and tenants, distribution agreement or joint research and development (R&D) contracts or any other kind of commercial disputes.

5. What are the advantages of using the KLRCA mediation rules?

The KLRCA Mediation Rules are flexible Rules with provisions sensitive to the need for the protection of confidentiality. The KLRCA provides administrative assistance to the Mediator and the parties by making available facilities, through the appointment of Mediators, by providing reasonable fixed schedule of fees and by providing a balance account of the fees and costs applied to the proceedings.

6. How do i begin a matter under the KLRCA mediation rules?

A party initiating the Mediation proceedings shall be required to submit a written request to the KLRCA providing the information as required under Rule 3 of the Mediation Rules, pay a non-refundable registration fee of USD50.00 for international Mediations or RM150.00 for domestic Mediations.

7. When is the mediation deemed to have commenced under the KLRCA mediation rules?

Mediation under the auspices of the KLRCA shall be deemed to have commenced when KLRCA receives written notice of the other party’s/parties’ acceptance of the Request.

8. How much will it cost to mediate under the KLRCA mediation rules?

The KLRCA Schedule of Fees will be applicable to the Mediation unless the Mediator and the parties agree otherwise. The cost to mediate would include payment of a non-refundable registration fee by the party initiating the mediation, amounting to USD50.00 for an international Mediation and RM150.00 for a domestic Mediation.

The Mediator’s fees are calculated based on the amount of days required for the Mediation as well as the hourly rate for the review of documents and related works. The KLRCA administrative costs are fixed at USD250.00 for international Mediations and RM500.00 for domestic Mediations.

9. How are mediators appointed under the KLRCA mediation rules?

The parties are free to agree upon a proposed Mediator. If, within 30 days of the Request for Mediation under Rule 4, all parties have not agreed upon a proposed Mediator willing to serve and not disqualified under Rule 10, then the Director of KLRCA shall appoint the Mediator and the parties are deemed to have approved the appointment made by the Director of KLRCA.

10. Can an appointed mediator be disqualified under the rules?

Yes. If any party objects to the service of the Mediator, the Mediator will be disqualified.

11. What happens if parties fail to pay the required fees, costs and expenses?

Payment of fees, costs and expenses are regulated by Rule 40. If parties fail to pay, the Director of KLRCA shall so inform the parties in order that one or another of them may make the required payment. If any such payment is not made, the Mediator, after consultation with the Director of KLRCA, may order the suspension or termination of the Mediation.

12. Are mediation proceedings confidential in nature?

Yes. Mediation under the KLRCA Mediation Rules is private and confidential in nature as provided under Rules 19-21. The Mediator, the parties, the participants and the KLRCA shall keep confidential all matters relating to the Mediation proceedings unless disclosure is compelled by law or if it is necessary for purposes of implementation and enforcement or it is with the consent of the parties to the Mediation.

13. Are parties restricted to appointing mediators from the KLRCA’s panel of mediators or when mediating under the KLRCA mediation rules?

No. There are no restrictions imposed and parties are free to appoint Mediators of their choice.

14. How long would the entire proceedings take?

Under Rule 28(d), the Mediation shall be completed within 3 months from the date of the Request for Mediation under Rule 4 unless parties have agreed otherwise.

Adjudication

1. Who can start the adjudication?

  • Either party to a construction contract can start the process of adjudication provided the right to do so under the Act has accrued.
  • This can be done by serving a notice of adjudication on the opposing party.

2. How do i choose an adjudicator?

  • Parties are entitled to choose their own adjudicator by mutual agreement as specified by CIPAA
  • If the parties are unable to so choose, a request in writing can be made to the Director of the Kuala Lumpur Regional Centre for Arbitration (KLRCA) to nominate an adjudicator.
  • It is important that the adjudicator selected is well qualified and experienced to deal with the particular dispute and to handle the adjudication process in a timely and cost effective manner as prescribed by the Act.

3. Do i need a lawyer?

  • A party to the adjudication proceedings may represent itself or by any representative appointed by it who may be a lay practitioner or a lawyer.
  • A lawyer may however be necessary if there is a reference for a stay or for the enforcement of the adjudicator’s decision to the High Court.

4. What happens during an adjudication?

  • The adjudicator is given a list of powers, duties and obligations by the CIPAA to conduct the adjudication.
  • The procedure as stipulated in the Act must be complied with. It is generally informal and relatively flexible being both adversarial and inquisitorial.
  • Generally, the adjudicator invites written submissions and evidence from both parties. There may be a short hearing or meeting where further submissions can be made, witnesses cross-examined and the adjudicator may ask questions on matters in issue. An adjudicator may also conduct a site visit if necessary. He is permitted to use his own specialist knowledge subject to the rules of natural justice in dealing with the matter in dispute.

5. What can be done if payment is not made after the adjudicator’s decision?

  • CIPAA allows, as one of the remedies, for the winning party to suspend or reduce the rate of progress of the construction work provided notice is given to the “losing” party. The former is entitled to a fair and reasonable extension of time to complete his obligations under the contract after being paid and to recover any loss and expense incurred thereby.
  • CIPAA further permits the “winning” party a right to request for direct payment from the principal of the party owing the monies, and the principal is required to pay the amount in question subject to the particular provisions of the Act.
  • More importantly, the ” winning” party can also apply to the High Court to enforce the adjudicator’s decision whilst the “losing” party is permitted to seek a stay of the same by application to the High Court.
  • CIPAA provides that the winning party can exercise any or all of the above rights or remedies concurrently.

6. How is an adjudicator’s decision enforced?

  • Both parties to a construction contract are required to comply with an adjudicator’s decision.
  • If one of the parties refuses to comply with the adjudicator’s decision, the other party may enforce the adjudicator’s decision through the courts. When enforced, the adjudicator’s decision takes effect as a judgment of the court unless the opposing party obtains a “stay” from the court.

7. Who pays for the adjudication?

  • Both parties are required to equally share the cost of the adjudicator’s fees and expenses. These fees have to be deposited with the Director of the KLRCA in advance as security.
  • The “loser” of the adjudication will have to pay eventually all the costs. As prescribed in CIPAA, “follow event” which simply means that the loser must pay for the legal and other related costs to the ” winner” in the adjudication proceedings.
  • The “loser” of the adjudication must also pay for the amounts as decided by the adjudicator in regard to the payment dispute.

8. What is the role of the Kuala Lumpur regional centre for arbitration (KLRCA)?

  • KLRCA is responsible, inter alia, to
    • Set the competency standard and criteria of an adjudicator. This is done by providing the relevant training courses to parties who are interested to become certified adjudicators.
    • Certifying qualified adjudicators and listing them on KLRCA’ s panel of adjudicators.
    • Determine the standard terms of appointment of an adjudicator and fees for his services
    • Provide administrative support for the conduct of adjudication under CIPAA
    • Undertake any other duties and functions as may be required for the efficient conduct of adjudication under this Act.
  • KLRCA will maintain a copy of each and every adjudication decision undertaken under CIPAA as the adjudicator is required to serve the same on the Director of KLRCA upon the conclusion of the matter referred to him.
  • KLRCA will also act as a stakeholder for the adjudication fees payable to the adjudicators, and for any adjudicated amount ordered by the court to be deposited with KLRCA by any party pursuant to an application for a stay.
  • For KLRCA to play the above role, the adjudicator will direct the parties to pay the adjudicator’s fees to the Director of KLRCA as advance security.

9. How can i best prepare for adjudication?

  • General awareness of CIPAA is necessary.
  • A good system of contemporaneous record keeping is essential. It will become vital should a party intend to pursue an adjudication action or to defend a claim.
  • The payment terms in the construction contract must be adhered to as strictly as possible. The absence of payment terms would automatically trigger the operation of the default provisions under CIPAA meaning, amongst others, that the fees prescribed by the relevant regulatory board under any written law will apply or if there are no prescribed fees then a fair and reasonable price would be awarded for the work and services done.
  • An adjudication under the Act can only commence when a ” dispute” has arisen. An opportunity must be given to the other party to respond to the payment claim before an adjudication should be considered. If the other party denies the claim, disputes the claim or simply fails to respond to the claim, only then should an adjudication be triggered.

ADNDRC

1. To which disputes does the uniform domain name dispute resolution policy (UDRP) apply?

The UDRP is a policy between a registrar and its customer and is included in registration agreements for all ICANN-accredited registrars. The Uniform Domain Name Dispute Resolution Policy (UDRP) has been adopted by ICANN-accredited registrars in all gTLDs (.aero, .asia, .biz, .cat, .com, .coop, .info, .jobs, .mobi, .museum, .name, .net, .org, .pro, .tel, .travel and .tv). It also applies to all new gTLDs. Dispute proceedings arising from alleged abusive registrations of domain names (for example, cybersquatting) may be initiated by a holder of trademark rights.

2. What kind of action can be taken if one wishes to file a complaint regarding a registered GTLD domain name?

The action to be taken is to commence an administrative proceeding by filing a Complaint with a domain name dispute provider appointed by ICANN, such as the Asian Domain Name Dispute Resolution Centre (ADNDRC) in accordance with the UDRP, its related Rules of Procedure and the Supplemental Rules.

4. On what grounds can an administrative proceeding in regard to a dispute in connection with a registered gTLD domain name be based?

Paragraph 4(a) UDRP states that the Complainant commencing an administrative proceeding in connection with a registered gTLD domain name must prove the following:

  • the gTLD domain name in question is identical or confusingly similar to a trademark or service mark to which the Complainant has rights; and
  • the person or company who is the registered holder of the gTLD domain name in question has no rights or legitimate interests in respect of the domain name; and
  • the registered gTLD domain name in question has been registered and is being used in bad faith.

It should be noted that in order to succeed in an arbitration proceeding under the UDRP, it is necessary for the Complainant to prove that all three (3) elements are present.

5. What constitutes “bad faith” in connection with the registration and use of a registered gTLD domain name?

Paragraph 4(b) of the UDRP, gives the following as examples of evidence of the presence of bad faith, it being important to note that these are examples and are indicative only and are not limitative:

  • circumstances indicating that the person or company who or which registered or acquired the .gTLD domain name in question did so primarily for the purpose of selling, renting or otherwise transferring the domain name to the Complainant who is the owner of the relevant trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name involved; or
  • the registrant registered the gTLD domain name in question in order to prevent the owner of the relevant trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or
  • the registrant registered the gTLD domain name in question primarily for the purpose of disrupting the business of a competitor; or
  • by using the gTLD domain name in question, the registrant intentionally attempted to attract, for commercial gain, Internet users to the registrant’s web site or other on-line location, by creating the likelihood of confusion with the Complainant’s mark as the source, sponsorship, affiliation, or endorsement of the registrant’s web site or location or of a product or service on the registrant’s web site or location.

The final decision as to whether bad faith is present or not is left to the determination of the Panel dealing with the administrative proceeding in question.

6. What is the role of the asian domain name dispute resolution centre (ADNDRC) in the dispute resolution process regarding gTLD domain names?

The ADNDRC has been appointed by the ICANN as one of four (4) dispute resolution providers in the world and the only one in Asia for disputes involving gTLD domain names. As such, the ADNDRC, through one of its four offices (Kuala Lumpur, Beijing, Hong Kong and Seoul) administers the administrative proceedings brought under the UDRP in accordance with the Uniform Domain Name Dispute Resolution Policy Rules of Procedure and the ADNDRC’s own Domain Name Dispute Supplemental Rules.

7. What are the steps in the administrative proceeding process in regard to a dispute involving a gTLD domain name?

The steps are as follows:

  • The Complainant files a Complaint with the one of the four offices (at the choice of the Complainant) of the Asian Domain Name Dispute Resolution Centre (ADNDRC);
  • The relevant office of the ADNDRC notifies the registered holder of the gTLD domain name in question of the Complaint and sends a copy of the Complaint to the registered holder;
  • the registered holder of the gTLD domain name in question files a Response;
  • the relevant office of the ADNDRC selects the Panel of one or three persons, as the case may be, which will conduct the administrative proceeding in respect of the disputed gTLD domain name and which will make a determination in regard to the dispute;
  • the Panel conducting the administrative proceeding renders its Decision;
  • if the Decision of the Panel conducting the administrative proceeding requires that the gTLD domain name in question be cancelled or transferred, the Decision is implemented.
  • Also see the Flow chart of Proceedings.

8. How long should a gTLD administrative proceeding take?

The administrative proceedings process should under normal circumstances take less than sixty (60) days from the date a Complaint is duly filed with the office until the Parties and the relevant Registrar are notified of the Decision of the Panel conducting the administrative proceedings.

9. What is the language of a gTLD administrative proceeding?

Paragraph 11 of the Uniform Domain Name Dispute Resolution Policy Rules of Procedure states that unless otherwise agreed between the Parties, or otherwise specified in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement, subject always to the authority of the Panel conducting the administrative proceeding to determine otherwise, having regard to all the circumstances of the administrative proceeding in question. In addition, a Panel conducting an administrative proceeding may order that any documents submitted in a language other than the language of the administrative proceeding shall be accompanied by a translation in whole or in part into the language of the administrative proceeding.

10. How much does an administrative proceeding in regard to a disputed gTLD domain name cost?

The cost of the administrative proceeding is set by the domain name dispute resolution provider in consultation with the ICANN.
According to Article 15 of the ADNDRC’s Domain Name Dispute Supplemental Rules, the fees are as follows: [Table]
If there are any deficiencies in the Complaint, an additional US$150 shall be paid by the Complainant. Normally, the Complainant is responsible for paying all the fees, unless the Respondent chooses to have the administrative proceeding conducted by a Panel of three (3) Panelists whereas the Complainant has chosen to have the Complaint decided by one (1) Panelist, in which case the fees are to be shared equally between the Parties.

It should also be noted, that according to Paragraph 19(d) Uniform Domain Name Dispute Resolution Policy Rules of Procedure in the exceptional circumstances that an in-person hearing is required, there will be additional fees to be paid which amount will be established by the ADNDRC in agreement with the Parties and the Panel.

The fees referred to above do not include any payments that a Party might have to pay to a lawyer or other representative representing such Party, which is a matter entirely for such Party.

11. How are fees in regard to a gTLD administrative proceeding to be paid?

According to Article 15(3) of the Asian Domain Name Dispute Resolution Centre’s (ADNDRC) Domain Name Dispute Supplemental Rules, fees which are to be paid to the relevant Office of the ADNDRC free of any bank charges, transfer fees or any withholdings, in United States Dollars (US$) only, by way of draft. Drafts which are to be paid to the Hong Kong Office of the ADNDRC are to be made payable to “Kuala Lumpur Regional Centre for Arbitration”.

12. Is it necessary for a party to be represented by a lawyer in a gTLD domain name dispute administrative proceeding?

No, it is not required, although a Party might well find it useful to engage the services of a legal advisor for the purpose. A Party may represent itself or be represented by any person such Party may choose.

13. Can a complaint include more than one disputed gTLD domain name?

Yes. According to Paragraph 3(c) of the Uniform Domain Name Dispute Resolution Policy Rules of Procedure a Complaint may relate to more than one domain name, provided that the domain names in question are registered by the same domain name holder. Also please note that Paragraph 4(f) of the UDRP provides that in the event of multiple disputes between a domain name holder and a Complainant, either Party may petition the first Panel to hear a pending dispute between the Parties, to consolidate the disputes before a single Panel. In such event the Panel, in its sole discretion, may consolidate any or all of the disputes in question before it, provided that the disputes being consolidated are governed by the UDRP.

14. Is the registrar of the disputed gTLD domain name to be involved in administrative proceeding involving a gTLD domain name?

No. According to Paragraphs 4(h) and 6 of the UDRP, the relevant Registrar will not participate in the administration or conduct of an administrative proceeding in respect of a gTLD domain name, and neither will the relevant Registrar be liable as a result of a Decision rendered by a Panel which has conducted an administrative proceeding. The relevant Registrar is not to be named as a party or otherwise in any administrative proceeding. The foregoing having been said, the relevant Registrar of course will implement a Decision of a Panel which after conducting an administrative proceeding calls for the cancellation or the transfer of a domain name which was in dispute.

15. If a complainant duly commences an administrative proceeding regarding a gTLD domain name, can the complainant still go to courts in connection with the disputed gTLD domain name?

Paragraph 4(k) of the UDRP states that the administrative proceedings called for under the UDRP shall not prevent either a Complainant or a domain name holder from submitting the dispute to a court of competent jurisdiction before the administrative proceeding is commenced or after the administrative proceeding is concluded. According to Paragraph 18 (b) of the Uniform Domain Name Dispute Resolution Rules of Procedure in the event that a Party initiates any legal proceeding during the pendency of an administrative proceeding in respect of the domain name which is the subject of the administrative proceeding, such Party shall promptly notify the Panel and the relevant Office of the ADNDRC. Paragraph 18 (a) of the Uniform Domain Name Dispute Resolution Rules of Procedure states that in the event that any legal proceeding is initiated prior to or during an administrative proceeding in respect of the domain name which is the subject of the administrative proceeding, the Panel appointed to deal with the administrative proceeding in question shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to continue to a Decision.

It should be noted that if a Panel decides that a domain name registration should be cancelled or transferred, the Registrar of the domain name in question will wait ten (10) business days (as observed in the location of the principal office of the Registrar) after the Registrar is informed by the relevant Office of the ADNDRC of the Panel’s Decision before implementing the Decision. The Registrar will implement the Decision, unless it receives from the domain name holder (the Respondent) during the ten (10) business day period, official documentation (such as a copy of a complaint, file-stamped by the clerk of the relevant court) that the domain name holder (the Respondent) has commenced a lawsuit against the Complainant in a jurisdiction to which the Complainant has submitted in accordance with Paragraph 3(b)(xiii) of the Uniform Domain Name Dispute Resolution Rules of Procedure. If the Registrar receives such documentation within the said ten (10) business day period, the Registrar will not implement the Panel’s cancellation or transfer Decision, and the Registrar will take no further action, until the Registrar receives (i) evidence satisfactory to it of a resolution between the Parties; (ii) evidence satisfactory to the Registrar that the domain name holder’s (the Respondent’s) lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing the domain name holder’s (the Respondent’s) lawsuit or ordering that the domain name holder (the Respondent) does not have the right to continue to use the domain name in question.

16. Will a party against whom an administrative proceeding in regard to a gTLD is filed have recourse to the courts?

Paragraph 4(k) of the UDRP states that the administrative proceedings called for under the UDRP shall not prevent either a Complainant or a domain name holder (the Respondent) from submitting the dispute to a court of competent jurisdiction before the administrative proceeding is commenced or after the administrative proceeding is concluded. According to Paragraph 18 (b) of the Uniform Domain Name Dispute Resolution Rules of Procedure in the event that a Party initiates any legal proceeding during the pendency of an administrative proceeding in respect of the domain name which is the subject of the administrative proceeding, such Party shall promptly notify the Panel and the relevant Office of the ADNDRC. Paragraph 18 (a) of the Uniform Domain Name Dispute Resolution Rules of Procedure states that in the event that any legal proceeding is initiated prior to or during an administrative proceeding in respect of the domain name which is the subject of the administrative proceeding, the Panel appointed to deal with the administrative proceeding in question shall have the discretion to decide whether to suspend or terminate the administrative proceeding, or to continue to a Decision.

It should be noted that if a Panel decides that a domain name registration should be cancelled or transferred, the Registrar of the domain name in question will wait ten (10) business days (as observed in the location of the principal office of the Registrar) after the Registrar is informed by the relevant Office of the ADNDRC of the Panel’s Decision before implementing the Decision. The Registrar will implement the Decision, unless it receives from the domain name holder (the Respondent) during the ten (10) business day period, official documentation (such as a copy of a complaint, file-stamped by the clerk of the relevant court) that the domain name holder (the Respondent) has commenced a lawsuit against the Complainant in a jurisdiction to which the Complainant has submitted in accordance with Paragraph 3(b)(xiii) of the Uniform Domain Name Dispute Resolution Rules of Procedure. If the Registrar receives such documentation within the said ten (10) business day period, the Registrar will not implement the Panel’s cancellation or transfer Decision, and the Registrar will take no further action, until the Registrar receives (i) evidence satisfactory to it of a resolution between the Parties; (ii) evidence satisfactory to the Registrar that the domain name holder’s (the Respondent’s) lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing the domain name holder’s (the Respondent’s) lawsuit or ordering that the domain name holder (the Respondent) does not have the right to continue to use the domain name in question.

17. Where can i obtain information about who is the registered holder of a gTLD domain name?

Information on registered gTLD domain name holders can be obtained by clicking on WHOIS on the ICANN’s website at www.internic.net/whois.html

18. What happens if a complaint in respect of a gTLD domain name is filed and it is determined by the asian domain name dispute resolution centre (ADNDRC) to be deficient when the ADNDRC undertakes its compliance review?

According to Article 7 of the ADNDRC Domain Name Dispute Supplemental Rules, if the relevant Office of the ADNDRC determines that there are deficiencies in the Complaint, such Office of the ADNDRC shall notify the Complainant of such deficiencies and the Complainant shall remedy such deficiencies within five (5) calendar days. As well, according to Article 15(2) of the ADNDRC’s Domain Name Dispute Supplemental Rules the Complainant must pay to the KLRCA at the time the Complainant submits the correction of the deficiencies an additional fee of US$150.

19. Is it necessary for a party against whom a complaint in respect of a gTLD domain name has been filed with the asian domain name dispute resolution centre (ADNDRC) to respond?

Yes. Under the terms of the Registration Agreement between the Registrar and the registered holder of a gTLD domain name, the latter agreed to participate in any administrative proceeding commenced in respect of the gTLD domain name in question.

20. What happens if a response is not filed on time or at all?

According to Paragraph 5 of the Uniform Domain Name Dispute Resolution Policy Rules of Procedure and Article 6 of the Asian Dispute Resolution Centre’s Domain Name Dispute Supplemental Rules, a Party who is the registered holder of a gTLD domain name against whom a Complaint is filed with the relevant Office of the ADNDRC must respond within twenty (20) calendar days of the date the relevant Office of the ADNDRC transmits the Complaint to such Party. In the event that such person, otherwise known as the Respondent, does not file a Response (including the payment of any relevant fees) within the said twenty (20) calendar days, the Respondent will be considered to be in default and the relevant Office of the ADNDRC will proceed to appoint the Panel which will conduct the administrative proceeding for the case informing the Panel of the Respondent’s default. The Panel will proceed to decide the case based on the information available to it and the Panel may draw such inferences as it deems appropriate from the Respondent’s failure to file a Response in a timely manner.

21. How is a panel for an administrative proceeding in respect of a gTLD domain name dispute established?

The Panels which conduct gTLD domain name disputes are composed of one (1) or three (3) Panelists, as the case may be. The Asian Domain Name Dispute Resolution Centre (ADNDRC) maintains a list of Panelists who the ADNDRC considers to be independent, reputable, knowledgeable, experienced, impartial and suited to undertake the task of deciding disputes in respect of gTLD domain names. The ADNDRC selects the Panelists to sit on a UDRP Panel on a case-by-case basis in light of the following criteria:- the nature of the dispute, the availability of the Panelist(s), the identity of the Parties, the independence and impartiality of the Panelist (s), any stipulations in the relevant Registration Agreement and any suggestions made by the Parties themselves in accordance with Paragraph 6 of the ADNDRC Uniform Dispute Resolution Policy Rules of Procedure and if, appropriate Paragraph 8 of the ADNDRC’s Domain Name Dispute Supplemental Rules.

A Panel to conduct a gTLD domain name dispute is appointed after the date on which a Response is duly filed or, if the Response, is not filed in a timely manner, after the last date the Response was supposed to have been filed. Prior to an appointment, a proposed Panelist must declare in writing to the Parties and the relevant Office of the ADNDRC any circumstances which could give rise to any justifiable doubt as to the Panelist’s impartiality or independence or prevent a prompt resolution of the dispute in question. If, at any stage during an administrative proceeding, new circumstances arise that could give rise to justifiable doubt as to the impartiality or independence of a Panelist, the Panelist in question shall promptly disclose such circumstances to the relevant Office of the ADNDRC, in which event the relevant Office of the ADNDRC shall have the discretion to appoint a substitute Panelist. Unless the Parties otherwise agree, no person shall serve as a Panelist in a dispute in which that person has any interest which, if a Party knew of it, might lead the Party to think that the Panelist might not be impartial or independent.

22. How long does a panel which is conducting an administrative proceeding have in order to render a decision in the proceeding?

According to Paragraph 15 (b) of the Uniform Domain Name Dispute Resolution Policy Rules of Procedure, in the absence of exceptional circumstances the Panel in question shall forward to the relevant Office of the ADNDRC the Panel’s Decision on a Complaint within fourteen (14) calendar days of the appointment of the Panel.

The relevant Office of the ADNDRC shall communicate the Decision of Panel to the Parties and the Registrar of the gTLD which was the object of the administrative proceeding within three (3) calendar days of the receipt by the relevant Office of the ADNDRC of the Decision.

23. What kind of decision can a panel make in a gTLD domain name administrative proceeding?

A Decision by a Panel conducting a gTLD domain name dispute administrative proceeding must be in writing. The kind of Decisions a Panel conducting a gTLD domain name dispute may render are limited. That is, a Panel might decide in one of two ways – (a) that the Complaint is not justified, in which case the existing registered gTLD domain name holder shall be entitled to retain the gTLD domain name in question; or (b) the Panel may decide that the Complaint is justified in which case the Panel will order that the domain name in dispute should be cancelled or transferred to the Party which brought the Complaint.

It should be noted that if a Panel, which conducts a gTLD domain name dispute administrative proceeding finds that a Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding, the Panel is required to state in its Decision that this was the case.

A Panel may not make money awards nor awards relating to costs, including without limitation, lawyer’s fees and costs.

24. Is it possible to challenge a decision in respect of a gTLD domain name made by a panel pursuant to an administrative proceeding?

Paragraph 4(k) of the UDRP states that the administrative proceedings called for under the UDRP shall not prevent either a Complainant or a domain name holder (the Respondent) from submitting the dispute to a court of competent jurisdiction before the administrative proceeding is commenced or after the administrative proceeding is concluded. Moreover, if a Panel decides that a domain name registration should be cancelled or transferred, the Registrar of the domain name in question will wait ten (10) business days (as observed in the location of the principal office of the Registrar) after the Registrar is informed by the relevant Office of the ADNDRC of the Panel’s Decision before implementing the Decision. The Registrar will implement the Decision, unless it receives from the domain name holder (the Respondent) during the ten (10) business day period, official documentation (such as a copy of a complaint, file-stamped by the clerk of the relevant court) that the domain name holder (the Respondent) has commenced a lawsuit against the Complainant in a jurisdiction to which the Complainant has submitted in accordance with Paragraph 3(b)(xiii) of the Uniform Domain Name Dispute Resolution Rules of Procedure. If the Registrar receives such documentation within the said ten (10) business day period, the Registrar will not implement the Panel’s cancellation or transfer Decision, and the Registrar will take no further action, until the Registrar receives (i) evidence satisfactory to it of a resolution between the Parties; (ii) evidence satisfactory to the Registrar that the domain name holder’s (the Respondent’s) lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing the domain name holder’s (the Respondent’s) lawsuit or ordering that the domain name holder (the Respondent) does not have the right to continue to use the domain name in question.

25. How is a decision of a panel in respect of a gTLD domain name administrative proceeding carried out?

Paragraph 4(k) of the UDRP states that if a Panel which conducts a gTLD domain name dispute administrative proceeding decides that a gTLD domain name registration should be cancelled or transferred, the Registrar will wait ten (10) business days (as observed in the location of the principal office of the Registrar) after the Registrar is informed by the relevant Office of the ADNDRC of the Panel’s Decision before implementing the Decision. The Registrar of the domain name in question will implement the Decision, unless it receives from the domain name holder (the Respondent) during the ten (10) business day period, official documentation (such as a copy of a complaint, file-stamped by the clerk of the relevant court) that the domain name holder (the Respondent) has commenced a lawsuit against the Complainant in a jurisdiction to which the Complainant has submitted in accordance with Paragraph 3(b)(xiii) of the Uniform Domain Name Dispute Resolution Rules of Procedure. If the Registrar receives such documentation within the said ten (10) business day period, the Registrar will not implement the Panel’s cancellation or transfer Decision, and the Registrar will take no further action, until the Registrar receives (i) evidence satisfactory to it of a resolution between the Parties; (ii) evidence satisfactory to the Registrar that the domain name holder’s (the Respondent’s) lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing the domain name holder’s (the Respondent’s) lawsuit or ordering that the domain name holder (the Respondent) does not have the right to continue to use the domain name in question.

DNDR

1. What are the results of the proceedings?

A domain name is either transferred or the complaint application is denied and the respondent keeps the domain name. It is also possible to seek cancellation or modification of the domain name.

In the MYDRP domain name disputes, there are no monetary damages available nor is there any injunctive relief. MYNIC, as the accredited domain name registrar, will implement the Panel’s decision after ten (10) working days, unless the decision is appealed in court in that time.

2. Can a complainant reach a settlement about the domain name dispute with the respondent?

If the Complainant and Respondent reach a settlement, they must immediately inform the Provider and/or the Panel as provided in the MYDRP Rules (please refer to rule 20.1), so long as it is before a decision is made by the Panel. The Complainant and Respondent must provide the Panel and/or Provider with a written and signed agreement of the settlement. Once the Panel and/or Provider receive the agreement, the Proceeding will be terminated.

3. How does a complainant claim an award of damages or payment of compensation from the respondent?

The Panel has no power to make such awards and therefore, any claim for damages or compensation must be made either through court or arbitration proceedings.

4. Are the results binding?

The panel decisions are mandatory in the sense that the Registrar (MYNIC) is bound to take the necessary steps to enforce a decision, such as transferring the name concerned. However, either party retains the option to take the dispute to a court of competent jurisdiction for independent resolution.

5.How and when will the parties be informed of the panel’s decision?

The Panel will forward its decision to the Provider within fourteen (14) working days after it has received the file containing the Complaint, Response and/or Reply from the Provider. The Provider informs MYNIC of the Panel’s decision for its further action.

6.What domain name disputes can be settled in malaysia?

Only disputes over .my country code top level domain names can be settled through domain name dispute resolution proceedings in Malaysia. This is because only .my country code top level domain names can be registered in Malaysia with the Malaysian Network Information Centre (MYNIC). All .my domain name dispute resolutions are governed by the MYDRP, the Domain Name Dispute Resolution Policy prepared by MYNIC. Other domain disputes have to be settled through other organisations. Do check the Internet Corporation for Assigned Names and Numbers, (ICANN) site for leads.

7. How can .my domain name disputes be settled in malaysia?

.my domain name disputes can be settled through domain name dispute resolution proceedings (Proceeding). However, parties are strongly encouraged to explore other dispute resolution processes such as negotiations, mediation or conciliation before commencing the Proceeding. Should the parties fail to find resolution through a Proceeding or choose not to resolve the dispute that way, the domain name dispute can be resolved before a Malaysian Court, arbitration or through any other dispute resolution process. These alternatives may be sought at any time, regardless of whether the Proceeding has commenced, concluded or otherwise.

8.What role does mynic play in the dispute resolution process?

MYNIC does not play a role in the process other than to enforce the decisions passed to MYNIC by the Provider in accordance with the MYDRP.

9. What is a provider?

A Provider is a body that offers domain name dispute resolution services in accordance with the MYDRP Policy and Rules. The Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the appointed Provider for .my domain name disputes.

10. What role does a provider play in the dispute resolution process?

A Provider will manage the entire domain name dispute resolution process, including receiving all relevant documents from the Complainant and Respondent, appointing the Panellists who will make the decision in respect of a Complaint, and communicating with the Complainant, Respondent and the Registrar (i.e. MYNIC).

11. How does the mydrp work?

The MYDRP is an administrative process designed to provide simple, fast and affordable resolution of .my domain name disputes. The MYDRP governs the terms of a dispute between the Registrant (Respondent) of a .my domain name and a third party (Complainant) over the Respondent’s registration and/or use of a domain name.

The Complainant must successfully prove (1) that the disputed domain name is identical / similar to a trade or service mark of the Complainant, and (2) that the Respondent registered and/or used the disputed domain name in “bad faith”. Then only will the registration of the disputed domain name be transferred to the Complainant or deleted or modified.

12. What does “bad faith” mean in the context of the registration/use of a domain name?

Examples include registration or use of the domain name by the Respondent to sell the domain name for profit to the Complainant, or registration or use of the domain name to disrupt a competitor’s business. The Respondent, in turn, may defend his/her use of the domain name by establishing rights and legitimate interests in the domain name, for example, the fact that the Respondent has been known by a name identical or similar to the domain name prior to registering it.

13. what are the rules and policies governing the dndr disputes?

The MYDRP Policy and Rules and the KLRCA’s Supplemental Rules provide guidelines for resolution of domain name disputes between parties.

14. What happens after the DNDR case is filed?

For an overview of the DNDR submission process, view the DNDR Process Flow Chart.

Cases are posted online after they have been assigned a MYDRP case number. The outcomes of individual Complaints will be posted as they become available, together with the names of the Complainant and the Respondent.

15. How much is the fee charged for filing a DNDR case?

Fees are incurred according to the composition of the panel and number of domain names in dispute.

16. How to submit forms?

Parties are required to fill in the necessary forms for filing purposes. All communication between parties and Provider must be submitted in electronic form and in hard copy to the Centre.

In electronic form:
Kindly download and complete the forms and email it to KLRCA at [email protected]

In hard copy form:
Send the signed original hard copy by registered post, courier or hand delivery to:
Kuala Lumpur Regional Centre for Arbitration
No. 12, Jalan Conlay
50450 Kuala Lumpur
Malaysia

17. Where can i get the decisions of the DNDR case?

Decisions are posted online as soon as the parties to the dispute have been notified of the decision.

SNDR

1. What is a sensitive name?

A Sensitive Name is a Domain Name which contains word or words in English, Malay and romanized Chinese (including dialects) and Indian dialects, which

  • Are sensitive to the Malaysian public;
  • Are obscene, scandalous, indecent, offensive or contrary to Malaysian public norms or policy;
  • Comprise of derivatives and colloquialisms of words that are offensive; and/or
  • Consist of pejorative expressions in terms of denotation, connotation or association.

2. What is SNDRP all about?

SNDRP is an administrative process designed to provide simple, fast and affordable resolution of .my domain name disputes. SNDRP governs the terms of resolving a dispute between the Respondent of a .my domain name and the Complainant over the Respondent’s registration and/or use of a domain name which contains a Sensitive Name.

The Complainant needs to establish that the Domain Name registered and/or used by the Respondent consists of a Sensitive Name.

Where the Respondent is able to prove that the disputed domain name is not a sensitive name, the domain name will remain with the Respondent. The registration of the disputed domain name will be deleted if the decision confirms that the disputed domain name is a sensitive name.

The three documents governing the SNDRP are .my DOMAIN REGISTRY’s Sensitive Name Dispute Resolution Policy; .my DOMAIN REGISTRY’s Sensitive Name Dispute Resolution Policy – The Rules ; and Kuala Lumpur Regional Centre for Arbitration’s Supplemental Rules to .my DOMAIN REGISTRY’s Sensitive Name Dispute Resolution Policy. You can also view a flowchart of the SNDRP process.

3. What role does .my domain registry play in the dispute resolution process?

.my DOMAIN REGISTRY does not play a role in the dispute resolution process other than to enforce the decisions passed to .my DOMAIN REGISTRY by the Provider in accordance with the SNDRP Policy and Rules.

4. What does “sensitive name” mean in the context of the registration/use of a domain name?

In submitting a complaint, the Complainant must establish that the Respondent registered and/or is using a domain name which consists of a word or words in English, Malay or romanised Chinese (including dialects) and Indian dialects, which are sensitive to the Malaysian public, are obscene, scandalous, indecent, offensive or contrary to Malaysian public norms or policy etc.

A Domain Name is considered to be obscene where it relates to a perversion of sex or sexual activities running counter to accepted standards of morals.

A Domain Name is offensive where it hurts the feelings of groups within society, including but not limited to, where it comprises derivatives and colloquialisms of words that are offensive, including:

  • derogatory terms referring to people;
  • racial or ethnic slurs;
  • religious slurs;
  • sneering sexual (identity/preference) remarks;
  • undesirable reference towards culture, society or community;
  • vulgar or crude expressions that refer to the anatomy, bodily function, body by-products and gender.

The Respondent in turn, may defend his/her use of the domain name, for example, the fact that the word(s) making up the Domain Name are widely accepted and used by the Malaysian public or that he/she has recognised rights and legitimate interests in the Domain Name e.g. a company or business or trademark registered in Malaysia by that name or that the Domain Name is directly related to the lawful content, goods and/or services provided by the resolving website or the Domain Name is capable of double meaning which relates to the lawful content, goods and/or services provided by the resolving website.

(For more information, please refer to paragraph 5 and 6 of SNDRP Policy).

Payment Procedures

1. Transactions in foreign currencies for international arbitrations

The KLRCA is an international organization pursuant to the Gazette Notification P.U. (A) 120/96. As such, this enables us to make and receive payments in foreign currency for the purposes of administration of ADR disputes. To this effect, should parties require a letter from Bank Negara to proceed with payment of invoices, the letter can be downloaded from this link.

We also wish to notify our stakeholders to transfer all foreign currencies only by way of electronic transfer for expeditious processing. Cheque clearances for international instruments take over 3 months for processing and are associated with bank charges.

Should you have any issues in carrying out such transactions, please do not hesitate to contact us at [here].