Domain disputes resolution in Kazakhstan

In the 21st century, legal disputes relating to information technology (IT) have become a widespread reality. One of the categories of IT disputes concerns domain names and their regulation.

The legal protection of domain names is a complex procedure which can be achieved by means of litigation in a state court or institutional arbitration in different jurisdictions. For example, quite recently the WIPO Arbitration and Mediation Center rendered the first decision with regard to a .UA domain name.

Another legal battle is going on in the US, where a mayoral candidate lost an action in state court in connection with the legality of domain’s using for political campaign whereas, in contrast, arbitration might prove successful for him.

An arbitral institution can be involved in legal protection of domain name provided that its rules establish essential requirements for arbitrators, arbitration procedure, etc. After having considered some patterns of the rules of relevant organizations, several questions arise. The core issue is whether such an organization really acts as an arbitral institution or constitutes a regulatory body with limited authority.

De jure and de facto statuses of the Kazakhstani regulatory body

The Rules for Uniform Domain Name Dispute Resolution Policy (UDRP) determine the procedure for alternative (out-of-court) consideration of cases involving domain names and trademarks.

The alternative consideration of domain disputes is regulated not only by the UDRP and the rules developed on its basis. The UDRP proceedings must be conducted by an arbitral institution that is specifically accredited by ICANN (the Internet Corporation for Assigned Names and Numbers).

Now, there are five accredited institutions in Geneva, Minneapolis, Kuala Lumpur, Prague and Amman. The Canadian International Internet Dispute Resolution Center got approval for an activity but is not operational yet. Those centers resolve legal disputes as to the registration of internet domain names and regulates the status of all generic top-level domains. The ICANN has a controlled branch, the IANA (Internet Assigned Numbers Authority): a non-profit private body that oversees global IP address allocation, the function of managing the spaces of IP addresses.

Nevertheless, in some CIS countries, like Kazakhstan, there are organizations, which deal with certain disputes in respect of the lower level of domains names. The non-profit organizationKazakh Network Information Center(“KazNIC”, “Center”) obtained registration from the Ministry of Justice of the Republic of Kazakhstan in September 1999 as a non-profit organization in the form of an institution.

The IANA has appointed the KazNIC as KZ top-level domain name support manager. The manager independently sets the procedure for registering domain names of the second and the subsequent levels strictly according to existing standards for the delegation of domain names on the Internet.

KazNIC does not establish the legality of the registration of the domain name and does not check whether this registration affects the rights of any third party. The registrant submits a request for a domain name and is fully responsible for choosing such name and maintaining the registration record up to date. The Center follows its Policy applicable to the process of the domain name’s obtaining.

Pursuant to Section 8 of the Policy, the registrant agrees that KazNIC does not act as an arbitrator and does not resolve disputes arising as a result of registration. At the same time, the registrant gives consent that the Center is authorized to provide information as to whether a proposed domain name infringes rights of the trademark owner. Furthermore, the Center has the power to apply the legal procedures when a third party submits a claim regarding trademark ownership.

Section 9 of the Policy comprehensively lists full-range procedures and activities of the Center. This section provides that a designation of trademark ownership does not automatically grant the rights to register a domain name. Also, applicable legal procedures do not reflect the opinion of KazNIC regarding the ultimate determination of evidence.

Evidently, the Policy in every possible way try to emphasize that the organization does not fulfil the functions of an arbitral institution and its activities cannot be deemed as a dispute settlement procedure. At least two references (Sections 2 and 9) within the text of the Policy directly indicate so. Despite attempts to proclaim a refusal of arbitral institution’s status, on actual basis KazNIC executes a lot of standard functions, which are usually relevant to an arbitral institution.

A systematic interpretation of the Center’s powers according to Section 9 of the Policy leads to the conclusion that KazNIC takes on the role of an arbitral institution.

Domain names disputes: mechanisms of settlement

First of all, this organization collects evidence in respect to a matter of domain names’ possession among different participants of the market. As an example, the Center requests an evidentiary material concerning the registrant’s possession of a registered trademark or service brand. Secondly, KazNIC is executing the assessment of the evidence. Finally, there are several variants of the Center’s final decision towards the domain name’s status.

Legal interaction between KazNIC and states courts

The next issue refers to the interrelation between KazNIC and state courts. Section 10 (Paragraph 1) of the Policy stipulates that KazNIC maintains a neutral position in case the registrant filed a lawsuit related to the registration in a state court. As long as the domain name is subject to a court’s consideration, the Center will not make any changes to the domain name record until the court decision.

Also, KazNIC waits for the final decision of a court or arbitral award, without involving as a party to the lawsuit. If the Center becomes a part of the lawsuit, it has all rights for protection and takes any actions necessary for its own defense. The category “arbitral institution” as an instance where the registrant is able to litigate controversy regarding domain name suddenly emerges in the last paragraph of Section 10.

A close look at the Policy shows that before this paragraph, only a court is referred to as a body where the registrant can file a lawsuit. As mentioned above, this is an additional endeavor of KazNIC bringing into focus that there is no empowerment of the Center to act as an arbitral institution.

The Policy of KazNIC contains many similar provisions and requirements for the procedure of domain disputes, just like in the UDPR. Even the structure of the Center’s Policy has apparent similarities with the structure and sequence of procedures of the UDRP.

Without any doubt, the UDRP provides more regulations and indicates the categories of cases, providers’ selection procedure and an appointment of an administrative panel (Chapter 4 of the UDPR). Extrapolating to a classic model of arbitration procedure adduces that the selection of providers and designation of administrative panel presents the processes of selection of arbitrators and appointment of an arbitration panel.


As for Kazakhstan, an interesting picture has emerged in this country. A lot of quasi-arbitral institutions exist there which call themselves arbitration bodies but have no appropriate number of arbitrators or their rules do not satisfy requirements of arbitration procedure impartiality. Simultaneously, there is at least one body which performs functions of administering arbitrations indeed but tries to avoid the status of an “arbitral institution”.

For the purpose of stability and development of intellectual property rights protection, it would be valuable to bring the Policy to balance with the UDPR. First of all, it is necessary to establish requirements for the appointment of a person who takes responsibilities for a final decision concerning the domain name’s legal status.

Next, an assessment of presented documents and evidence by the decision-maker should be formalized in some kind of document. In particular, the Policy should include essential characteristics and prerequisites for such document. Additionally, the Policy would become more clear and well-ordered if it contained specific provisions about communication between the decision-maker and the registrant.

This legal convergence could help to take over the classic model of arbitration procedure and to allow the disputing parties to resolve legal matters with an appropriate volume of guarantees.

About the Author:

Konstantin Voropaev obtained an LLM degree with distinction at Robert Gordon University (Scotland) in 2017 having previously graduated with honours from Omsk State University in 2012. His professional interests include various legal areas, compliance and ethics procedures. He deals with international commercial arbitration in different jurisdictions (Russia, Central Asia, and Europe), legal matters in pharmaceutical production and medical affairs in clinical trials, civil and contract legal issues, compliance.

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