French dispute resolution system for domain names returning to WIPO in September 2013

The current French alternative procedure for domain names is called Syreli and is managed by the AFNIC. This dispute resolution system was set up following the decision of the French Supreme Court of October 6, 2010 and has been available since November 21, 2011.

The particularity concerning Syreli is that the AFNIC is also the registry for the <.fr>.

Therefore, the AFNIC can rule against the registration or the renewal of any domain name in <.fr> and is also in charge of the dispute resolution system.

That is a unique role as both a decision-maker and a judge for the AFNIC. This accumulation of advantages seems to be opposed to the right to a fair trial provided by Article 6§1 of the European Convention on Human Rights (ECHR).

The ECHR requires an “impartial tribunal” and the Court has its own tribunal definition which is very broad[1]. Consequently, there should be no reason for the Court not to qualify the AFNIC as a tribunal.

The Court divided the impartial requirement into two components, objective and subjective impartiality and in the Syreli procedure, the objective impartiality deserves some attention.

The Court defines objective impartiality as “whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect[2].

The Syreli procedure states that the court is to be composed of three members: the CEO of the AFNIC and two named members of the AFNIC.

Therefore, there is no interdiction for AFNIC, which has already ruled on the registration or the renewal of a domain name, to take part in a dispute resolution procedure about the same domain name!

Consequently, the composition of this Court seems to infringe on the impartiality requirement of Article 6§1 of the EHCR.

Thankfully, in a convention between the French government and the AFNIC[3], the latter agreed to set up in September 2013 a new dispute resolution procedure placed under the WIPO authority.

[1] See ECHR, October 22, 2004, Sramek a/ Austria

[2] See EHCR, May 24 1989, Hauschildt a/ Denmark