Schedule 2 — Dispute Resolution Scheme Rules
Please note: On 1 October 2024, version 5 replaced version 4.2. Version 4.2 is available for reference at the bottom of this page. For all the .nz policies.
Version 5
Part 1: Preliminary provisions
1.0 Purpose and Scope
1.1 These are the Scheme Rules of the .nz Dispute Resolution Scheme established under the .nz Rules.
1.2 These Scheme Rules are in force from the date of DNC’s Notice of Decision under the .nz Rules as set out on the cover page of this document or the DNC website until replaced.
1.3 The version of the Scheme Rules in force at the time the Dispute is accepted governs the Dispute and is binding on the Parties, the Dispute Resolution Practitioners, DNC, and NZDRC until the Conclusion of the Dispute Resolution Services.
1.4 The purpose of the Scheme is to provide dispute resolution processes that are:
(a) culturally responsive, independent, fair, prompt, efficient, and effective;
(b) provide a proportionate response to the complexity of the issues involved; and
(c) are a cost-effective and timely alternative to court or other proceedings.
1.5 The scope of the Scheme covers Disputes that meet the following eligibility criteria. These are the grounds of the Claim, each of which must be established by the Claimant on the balance of probabilities (more likely than not):
(a) two or more parties are in dispute over who the holder of a .nz Domain Name should be and whether:
(i) the Claimant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
(ii) the Domain Name, in the hands of the Respondent, is an Unfair Registration; and/or
(b) two or more parties are in dispute over a Sub-domain that is attached to a Domain Name registered directly at the second level of .nz as to whether:
(i) the Sub-domain added at the second level of .nz has the appearance of a Domain Name registered at the third level of .nz;
(ii) the Claimant has Rights in respect of a name or mark which is identical or similar to the Sub-domain or apparent third-level Domain Name; and/or
(iii) the Sub-domain, in the hands of the Respondent, is an Unfair Registration.
1.6 A Dispute may be referred to the Scheme for resolution via a Claim in a Claim Form. A Claim may not be made in relation to any other dispute or in any other manner.
1.7 The Claimant may elect to have the Dispute referred to:
(a) Mediation (under Part 3); or
(b) Expert Determination (under Part 4).
1.8 A Party may Appeal the Determination of the Expert (under Part 5).
1.9 To resolve a Dispute by Mediation, the Parties must enter into a Settlement Agreement.
1.10 To succeed with a Claim in Expert Determination, the Claimant must establish that all the grounds of the Claim are present on the balance of probabilities (more likely than not).
1.11 To succeed with an Appeal, the Appellant must establish that all the grounds of the Appeal are present on the balance of probabilities (more likely than not).
1.12 Any Party to a Dispute may request cultural or accessibility support services including use of the Tikanga framework to support that Party throughout the Dispute process once a Dispute is accepted by NZDRC. NZDRC will appoint a Contractor to provide the agreed services and the Contractor’s fee will be paid by DNC via NZDRC.
2.0 Definitions and Interpretation
2.1 Except to the extent the context otherwise requires, in these Scheme Rules:
Appeal means a formal challenge to a Determination, made under these Scheme Rules.
Appeal Notice means a notice of an Appeal given by a Party in the form published on the NZDRC website at the time the Appeal Notice is submitted, and when completed includes all attachments.
Appeal Panel means a panel of three Experts appointed by NZDRC to determine an Appeal.
Appeal Panel’s Fee means the fee payable by the Appellant as set out on the NZDRC Website at the time an Appeal Notice is received by NZDRC (unless otherwise agreed under these Scheme Rules).
Appeal Period in relation to an Expert Determination means the period of 10 Working Days after all Parties have received or are deemed to have received the Determination.
Appeal Response Form means the form by that name on the NZDRC Website at the time the Response is submitted, and when completed, it includes all attachments
Appellant means the Party that makes an Appeal by submitting an Appeal Notice.
Claim means a claim regarding a Dispute submitted to NZDRC via a Claim Form and includes the substance of the Claim and all related Submissions.
Claimant means the individual or entity that refers a Dispute to NZDRC for resolution under the Scheme or, if one or more Representatives have been appointed or there are multiple Claimants, the Lead Claimant.
Claim Form means either a Mediation Claim Form or an Expert Determination Claim Form.
Compliance Lock means where DNC locks a Domain Name that is the subject of a Claim until the Conclusion of the Dispute Resolution Services, as directed by NZDRC.
Conclusion of the Dispute Resolution Services means the date of whichever of the following events occur first:
(a) The Dispute, Claim or Appeal is settled, withdrawn or deemed to be withdrawn;
(b) The period for lodging an Appeal relating to a Determination expires;
(c) The Mediator, Expert or Appeal Panel has ended the Mediation, Expert Determination or Appeal process on their own initiative; or
(d) The Dispute Resolution Services are terminated on any other basis under these Scheme Rules or at law.
Contractor means:
(a) for the purposes of Rules 1.12 and 3.5, any individual or entity appointed by NZDRC to provide cultural or accessibility services; and
(b) regarding Dispute Resolution Services, any individual or entity appointed by NZDRC to provide Dispute Resolution Services.
Costs means the Parties' own costs and expenses of the Mediation, Expert Determination or any Appeal (for example, including the cost of their Representatives, legal fees, their own experts' fees, travel and accommodation costs).
Descriptive Term means a word or phrase that is wholly descriptive and illustrates only the purpose, quality or feature of the relevant business, product, good or service, profession, place, or thing and immediately gives an idea of what the goods and services are (for example, ‘Holiday Inn’ for hotels; ‘All Bran’ for cereal; ‘matrimony’ for matrimonial services; and geographic locations), and which is not distinctive and has not acquired a distinctive secondary meaning, and descriptive has a corresponding meaning.
Determination means the decision reached by an Expert, and includes decisions of an Appeal Panel, and includes the substance of the decision, and determine has a corresponding meaning.
Disclose means publish, communicate or otherwise supply, and Disclosure has a corresponding meaning.
Dispute means a dispute that satisfies the relevant eligibility criteria in Rule 1.5 includes the substance of the Dispute and all related Submissions.
Dispute Resolution Practitioner means an individual employed by or contracted by NZDRC to provide Dispute Resolution Services.
Dispute Resolution Services means Mediation, Expert Determination or determination of Appeals in accordance with these Scheme Rules.
Domain Name or .nz Domain Name means a domain name registered in the .nz Register and includes a Sub-domain.
Domain Name Commission or DNC means Domain Name Commission Limited, a company wholly owned by InternetNZ, and appointed by InternetNZ to manage .nz on its behalf.
Domain Name Hijacking means acting in bad faith to deprive a registered Domain Name Holder of a Domain Name.
Domain Name Holder or Registrant means the individual or entity entered in the .nz Register as the holder of the Domain Name.
Electronic communication means email or any other electronic means of communication that provides a record of its transmission, receipt or delivery, and includes the use of any designated electronic filing system or case management system operated by NZDRC.
Expert means:
(a) an individual appointed by NZDRC to resolve a Domain Name Dispute by Expert Determination; and
(b) in relation to an Appeal means each individual appointed by NZDRC to the Appeal Panel,
in each case selected by NZDRC from the list of experts published on the NZDRC Website at the time of the appointment.
Expert Determination means the determination of a Dispute by an Expert under these Scheme Rules and includes the substance of the Determination.
Expert Determination Claim Form means the form by that name on the NZDRC Website when the Claim is submitted requesting Expert Determination, and when completed, it includes all attachments.
Expert Determination Reply Form means the form by that name on the NZDRC Website at the time the Reply is submitted, and when completed, it includes all attachments.
Expert Determination Response Form means the form by that name on the NZDRC Website at the time the Response is submitted, and when completed, it includes all attachments.
Expert’s Fee means the fee set out on the NZDRC Website at the time the Claim is accepted by NZDRC (unless otherwise agreed under these Scheme Rules).
Fair Use is defined in Schedule 1.
Fee or Scheme Fee means (according to the context) any or all of the following: the Mediator’s Fee, Expert’s Fee, the Appeal Panel’s Fee, and any other or related costs, expenses or fees of the Mediator, Expert, Appeal Panel or Dispute Resolution Services required or agreed to be paid by one or more of the Parties.
Generic Term means a word or phrase that is a common name in general public use for a product or good, service, profession, place or thing (for example, toy; shop; cleaner; lawyers; Wellington; sparkling wine), which is not distinctive and has not acquired any distinctive secondary meaning, and generic has a corresponding meaning.
InternetNZ means Internet New Zealand Incorporated, the organisation that holds the .nz delegation and which operates and manages the .nz Register.
Lead Claimant, where there are multiple Claimants and/or one or more Representatives, means the Claimant or Representative identified in the Claim Form as the individual who will receive communications on behalf of all Claimants and their Representatives and act on their behalf for the purposes of the Dispute under the Scheme (or any substitute individual notified subsequently as being the Lead Claimant).
Lead Respondent, where there are multiple Respondents and/or one or more Representatives, means the Respondent or Representative identified in the Response Form as the individual who will receive communications on behalf of all Respondents and their Representatives and act on their behalf for the purposes of the Dispute under the Scheme (or any substitute individual notified subsequently as being the Lead Respondent).
Mediation means mediation under these Scheme Rules.
Mediation Claim Form means the form by that name on the NZDRC Website when the Claim is submitted requesting Mediation, and when completed, it includes all attachments.
Mediation Response Form means the form by that name on the NZDRC Website at the time the Response is submitted, and when completed, it includes all attachments.
Mediator means a mediator appointed by NZDRC to carry out a Mediation, selected by NZDRC from the list of mediators published on the NZDRC Website at the time of the appointment.
Mediator's Fee means the fee agreed between DNC and NZDRC from time to time (and which may be published on the NZDRC Website) to be paid to a Mediator for a Mediation.
.nz Register has the meaning given in the .nz Rules.
.nz Registrar or Registrar has the meaning given to the term ‘Registrar’ in the .nz Rules.
.nz Rules means the rules that govern the .nz domain name space as published on the DNC and InternetNZ websites which may be amended from time to time.
Notice of Withdrawal means a notice given by a Party or the Parties withdrawing the Claim or Appeal in, or substantially in, the form appearing on the NZDRC Website.
NZDRC means New Zealand Dispute Resolution Centre Limited, a company incorporated under the Companies Act 1993 (company number 2301888). Reference to NZDRC in these Scheme Rules includes reference to the NZDRC Registrar acting in that capacity unless the context requires otherwise. NZDRC is the company subcontracted by DNC to administer the Scheme on DNC’s behalf.
NZDRC Registrar means the individual or individuals authorised by NZDRC from time to time to act as the Scheme's registrar in accordance with these Scheme Rules. The NZDRC Registrar may be contacted at [email protected].
NZDRC Website means NZDRC's website, found at www.nzdrc.co.nz or www.domainnamedispute.nz.
Party means a party to a Dispute under these Scheme Rules (that is, a Claimant, Appellant or Respondent) and includes their Representatives.
Reply means the statement of the Claimant answering the Response (if there was a Response) and includes the substance of the Reply and all related Submissions.
Reply Form means the form by that name on the NZDRC Website at the time the Reply is submitted, and when completed includes all attachments.
Representative means an individual representing or assisting a Party in any capacity (whether legally qualified or not) and includes a fact or expert witness, translator or interpreter, but excludes a Contractor appointed by NZDRC to provide cultural or accessibility support or assistance to a Party or the Parties.
Respondent regarding a Claim means the individual or entity in whose name or on whose behalf a Domain Name is registered, being the Party against whom the Claim is made, or regarding an Appeal means the Party that is not the Appellant.
Response means:
(a) the statement of the Respondent answering the Claim; or
(b) the statement of the ‘other Party’ to an Appeal answering the Appellant’s Appeal Notice,
and includes the substance of the Response and all related Submissions.
Response Form means a Mediation Response Form, an Expert Determination Response Form or an Appeal Response Form.
Rights include, but are not limited to, rights enforceable under New Zealand law, but for the purposes of the Scheme exclude rights in a name or term that is a Generic Term or wholly a Descriptive Term.
Rule means a provision or section of these Scheme Rules.
Scheme means the .nz Dispute Resolution Scheme provided by the DNC as set out in Schedule 2 of the .nz Rules.
Scheme Rules means these rules of the Scheme, as amended by DNC from time to time.
Settlement Agreement means a written agreement signed by the Parties recording the terms of settlement of the Claim and which the Parties have agreed will be legally binding on them, which must include whether each Domain Name in Dispute is to be transferred or deleted or not.
Sub-domain means a name added to a .nz Domain Name by the Domain Name Holder registered directly at the second level. (For example, the Domain Name could be ‘shop.nz’ and the sub-domain could be ‘anyname’, being in full ‘anyname.shop.nz’.) A Sub-domain is categorised as a Domain Name for the purposes of these Scheme Rules.
Submission means:
(a) in Mediation:
(i) the Mediation Claim Form, and any Mediation Response Form; and
(ii) any other information or statements (written or oral) or documents provided by the Parties, in response to a request, suggestion or question from the Mediator; or
(b) in Expert Determination or an Appeal:
(i) the Expert Determination Claim Form, Appeal Notice and any Response Form or Reply Form; and
(ii) any information or statements (written or oral) or documents provided by the Parties in response to a request, direction or question from the Expert or Appeal Panel.
Tikanga broadly means Māori beliefs, protocols, principles, values, and practices that derive from traditional knowledge (mātauranga Māori) and a Māori worldview and traditions.
Unfair Registration is defined in Schedule 1.
Unfair Use is defined in Schedule 1.
Working Day means:
(a) a day of the week other than a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, Matariki, the Sovereign's birthday, and Labour Day;
(b) a day of the week other than a day in the period commencing on 24 December in a year and ending on 5 January in the following year;
(c) if Waitangi Day, Anzac Day or Matariki falls on a Saturday or a Sunday, the following Monday;
(d) any provincial holiday in New Zealand (such as Auckland Anniversary Day) that is observed as a public holiday in the province in which an act is to be done (for example and without limitation, the filing and service of any Claim, Response, Reply or Appeal, or service of a form or notice under these Scheme Rules); and
(e) if a Party notifies the other Parties, the Mediator or Expert and NZDRC that they reside in a country other than New Zealand, any day that is a public holiday in the country or province in which that Party resides; and
(f) a Working Day ends at 11:59 pm New Zealand Standard Time (UTC + 12) or New Zealand Daylight Time (UTC + 13) as applicable on that day.
2.2 For clarity, for the purposes of the .nz Rules, each Expert and Appeal Panel is a ‘tribunal of competent jurisdiction’ or ‘Tribunal having jurisdiction’ regarding a Domain Name that is the subject of a Dispute.
2.3 Unless the context requires otherwise, in these Scheme Rules, words in the singular include the plural, and words in the plural include the singular, and a part of speech includes all other parts of speech.
2.4 If there is any conflict between Rules, the more specific Rule prevails over the more general Rule unless provided otherwise (for example, regarding the Expert’s powers).
Part 2: Dispute resolution processes, relationship with other dispute resolution procedures and general provisions
3.0 Dispute resolution processes
3.1 The Scheme provides two types of dispute resolution processes: Mediation and Expert Determination. An Expert Determination may be subject to an Appeal.
Claimant choice of dispute resolution process
3.2 When a Claimant submits a Claim, they must elect either Mediation (Part 3) or Expert Determination (Part 4).
Tikanga-based dispute resolution
Parties may request NZDRC to facilitate a Tikanga-based process for the resolution of Disputes under the Scheme using Māori beliefs, principles, values, and practices that derive from traditional knowledge (mātauranga Māori) for improved outcomes for Parties. Disputes using a Tikanga-based process are resolved using either Mediation or Expert Determination processes (and any Appeal) provided for in these Scheme Rules in a culturally responsive and respectful way. A Tikanga-based Māori cultural support framework is in place to help guide the application of Tikanga in this respect.
3.3 NZDRC’s Tikanga-based approach recognises that Tikanga is not static and can vary in form and application across different rohe (regions). Notwithstanding, there are key Tikanga principles that are universal in nature.
3.4 NZDRC’s Tikanga-based approach to dispute resolution services recognises the principles envisaged in Te Tiriti o Waitangi (the Treaty of Waitangi) and affirms the commitment of NZDRC, DNC and InternetNZ to Te Tiriti o Waitangi and its principles, including those of partnership, protection and participation.
3.5 DNC will pay the fee of any Contractor appointed by NZDRC to provide an agreed Tikanga-based approach to the Dispute Resolution Services.
4.0 Relationship with other proceedings
4.1 The operation of the Scheme does not affect any right any individual or entity may have to commence a proceeding in any court or arbitral tribunal or before any decision-making body with jurisdiction, including seeking any interim relief.
4.2 A Party must promptly notify NZDRC:
(a) of any court, tribunal or other proceedings as soon as it initiates or becomes aware of the proceedings at any time until the Conclusion of the Dispute Resolution Services;
(b) if the proceedings are discontinued;
(c) the outcome of those proceedings;
(d) if the time for lodging appeals has passed and whether any appeal has been lodged or not, and if so, the discontinuance or outcome of the appeal; and
(e) provide a formal copy of any orders, awards or directions of the court, tribunal or other decision-making body, which may include whether any Domain Name is to be transferred or any Domain Name is to be deleted.
4.3 DNC, NZDRC and any appointed Mediator or Expert will comply with the orders, awards and directions notified to them by a Party. Until the proceedings notified under Rule 4.2 have concluded:
(a) NZDRC or, if appointed, the Expert or Appeal Panel will suspend the Expert Determination or Appeal process; and
(b) NZDRC or, if appointed, the Mediator will suspend the Mediation (unless the Parties validly agree otherwise).
Consolidation
4.4 A Party may request NZDRC to, or NZDRC may on its own initiative after consulting with the Parties, consolidate two or more Disputes accepted by NZDRC involving the same or substantially the same Parties and closely similar domain names into one proceeding. NZDRC’s decision on a request for consolidation and any change to the applicable fees is final and binding on the Parties. Parties may be ‘substantially the same’ where there is a close relationship between them (for example, they are partners, spouses or close relatives, or a director or shareholder of a company and/or the company) or as otherwise decided by NZDRC.
Bad faith claims
4.5 If a Claimant has been found to have brought a Claim in bad faith (whether under these Scheme Rules or version 4.2 of the InternetNZ Dispute Resolution Service policy) on three separate prior occasions within a two-year period, NZDRC will not accept any further Claim from that Claimant for a period of two years from the date of the third such finding of bad faith.
5.0 General provisions
Communications and notices
Communications must be in writing
5.1 All communications (including any notices, applications, requests, or Submissions that need to be given or served under these Scheme Rules) must be in writing and in English (or in the language of the Mediation or Expert Determination).
All communications to NZDRC
5.2 All communications, including those intended for the Mediator, Expert or Appeal Panel must be addressed to the NZDRC Registrar at [email protected]. (If a party does not have access to email, communication by hard copy to NZDRC’s physical address on the NZDRC Website will be accepted, provided it is received within any applicable time limit). The NZDRC Registrar will send them to the recipient and copy them to the other Party and/or participants as appropriate.
Electronic communication (email, etc)
5.3 A communication must be given or served by Electronic communication (unless a party does not have access to any means of Electronic communication, in which case communication by hard copy will be accepted, provided it is received within any applicable time limit). This Rule applies whether or not any contract relevant to the Claim allows Electronic communication.
5.4 A Party can nominate an email address or other reasonable means of Electronic communication as their preferred method of communication. The nomination and any subsequent change must be notified to NZDRC, the Mediator, the Expert, the Appeal Panel, and every other Party.
5.5 If a nominated email address or other means of Electronic communication is notified, any communication must be given or served in that manner, and if delivered or served in that manner, will be considered as having been received by the Party.
5.6 If no email address is nominated or other means of Electronic communication or the nominated address or means of Electronic communication does not appear to be valid (for example, NZDRC receives a system-generated message to the effect that the Electronic communication cannot be delivered to that address) NZDRC may, but is not obliged to send an Electronic communication:
(a) to the email address of the Domain Name Holder specified in the .nz Register;
(b) to postmaster@; or
(c) if the Domain Name resolves to an active web page (other than a generic page which DNC concludes is maintained by an ISP for parking Domain Names), to any e-mail address shown or e-mail links on that web page so far as this is practicable,
and any communication delivered or served in that manner will be considered as having been received by the Party. If a Party does not have access to email or other means of Electronic, communication, NZDRC may deliver a communication by hard copy to the Party’s physical address advised to NZDRC or appearing in any public register (for example, the Companies Office Register). Any communication delivered or served in that manner will be considered as having been received by the Party.
Calculation of time
5.7 Unless otherwise agreed between the Parties:
(a) any period of time under these Scheme Rules is to be calculated in accordance with New Zealand Standard Time (UTC + 12) or New Zealand Daylight Savings Time (UTC + 13) as applicable; and
(b) when calculating any period of time referred to in these Scheme Rules, the day of the act or event is not included in the period of time. The period starts on the first Working Day after the date of the act or event.
5.8 Time periods under these Scheme Rules are calculated in Working Days. If a period is agreed or specified that is not calculated in Working Days, and the last day of such a period is not a Working Day, the period will be extended to the first Working Day that follows.
No storage of documents
5.9 All documents must be submitted by Electronic communication in soft copy. Hard copy documents received by NZDRC or a Dispute Resolution Practitioner may be destroyed. Soft copy documents will be stored for the period required by law and afterwards may be deleted.
5.10 These Rules are subject to any legal requirement regarding the retention of records and, without limitation, to the provisions of the Privacy Act 2020.
Data protection
5.11 A Mediator, Expert, Appeal Panel or NZDRC may issue directions in relation to information security or data protection (for example, by implementing a cybersecurity protocol, requiring the use of a particular electronic information system, or adopting measures to protect personal information). The directions are binding on the Parties and, in the case of a direction issued by NZDRC, on the Mediator, Expert or Appeal Panel, except to the extent they conflict with any applicable law or other mandatory provision.
Authority of NZDRC
5.12 All decisions of NZDRC under these Scheme Rules (for example, a decision to appoint a Dispute Resolution Practitioner or a Contractor or revoke their appointment) are administrative in nature. Such decisions are final and binding on the Parties (including their Representatives), the Dispute Resolution Practitioners and the Contractors and are not subject to appeal to NZDRC. NZDRC is not required to explain the reasons for its decision.
Scheme Fees
5.13 The Scheme Fees published on the NZDRC Website may (among other things):
(a) provide for different fee levels according to the nature and complexity of the Dispute, for example, where there are six or more Domain Names and/or multiple Claimants and/or Respondents;
(b) specify the maximum amount of time allotted for Mediation that will be paid for by DNC; and
(c) be varied by agreement between NZDRC and DNC at any time. Any changes will be notified via the NZDRC Website.
NZDRC Website
5.14 NZDRC reserves the right to make reasonable changes to the NZDRC Website. Modifications will be effective and binding on the date they are made or as specified on the NZDRC Website. With DNC’s approval, NZDRC may change the format of the forms and may combine one or more forms.
Scheme Rule modifications
5.15 DNC reserves the right to amend the Scheme Rules at any time. DNC may make amendments without any requirement to consult where:
(a) DNC is acting in pursuance of a statutory or regulatory requirement or a court order;
(b) the nature of the amendment is technical and not substantive; or
(c) it is necessary in the public interest that the amendment is made urgently.
5.16 In all other circumstances, DNC will follow a process of open public consultation in accordance with Rule 5.17 before amending the Scheme Rules.
5.17 DNC will publicly notify on its website the process it will follow when consulting on a proposed amendment, which, at a minimum, will include DNC:
(a) publishing a draft of the proposed amendments on its website;
(b) providing not less than 30 calendar days for feedback to be submitted on the proposed amendments;
(c) considering any feedback submitted; and
(d) publishing the final Scheme Rules determined by DNC and advising the date on which the proposed amendments are effective.
Part 3: Mediation
6.0 How to start Mediation
Claim submitted by Claimant
6.1 A Dispute can be referred to Mediation by the Claimant submitting a Mediation Claim Form to NZDRC via the NZDRC Website. The Claim may concern more than one Domain Name, provided all Domain Names are registered in the name of the same Respondent (and see Rule 5.13(a) and the NZDRC Website regarding fees for Claims regarding multiple Domain Names).
6.2 The Claimant must provide all information required by the Mediation Claim Form and attach all necessary documents.
Costs of the Mediation
6.3 The DNC will pay the Mediator’s Fee via NZDRC up to any maximum amount or number of hours allotted for a Mediation by the DNC, as set out in the NZDRC Website.
6.4 The Parties must pay their own Costs of the Mediation.
6.5 The Mediator cannot require a Party to pay another Party’s Costs, but the Parties may agree to this in any Settlement Agreement.
Acceptance of the Dispute by NZDRC
6.6 NZDRC will not accept a Dispute if the Mediation Claim Form is missing any of the required information or otherwise does not comply with these Scheme Rules. NZDRC will give the Claimant three Working Days to provide an updated Mediation Claim Form that contains all required information, after which NZDRC will advise the Claimant whether the Dispute is accepted or rejected (including reasons for any rejection).
6.7 As soon as reasonably practicable and in any event within five Working Days of a Dispute being accepted and the Claimant being notified, NZDRC will:
(a) notify and provide a copy of the Mediation Claim Form to the Respondent; and
(b) instruct DNC to put a Compliance Lock on the Domain Name until the Conclusion of the Dispute Resolution Services (at which time DNC will remove the Compliance Lock from the Domain Name at NZDRC’s direction).
6.8 DNC will activate the Compliance Lock as soon as reasonably practicable after receiving the direction from NZDRC.
Response submitted by Respondent
6.9 The Respondent may provide a Response to the Claim by submitting a Mediation Response Form within 10 Working Days after receipt of the Mediation Claim Form (unless an extension of time is granted under Rule 6.12). If the Response is late, it will be disregarded.
6.10 The Respondent must provide all information required by the Mediation Response Form and attach all necessary documents.
6.11 NZDRC will send the Mediation Response Form to the Claimant if the Response complies with the above Rules; otherwise, it will be rejected.
Changes to Response Period
6.12 The NZDRC Registrar may allow additional time for the Response if they consider it reasonably required for any reason (for example, due to the size or complexity of the Claim and the Respondent's insufficient time to prepare a Response).
Appointment of the Mediator
6.13 NZDRC will appoint a Mediator if a Response is received that meets the requirements of these Scheme Rules. If a Response is not received, Mediation cannot be commenced. The Claimant may choose to instead submit a Dispute for Expert Determination under Part 4.
6.14 NZDRC, at its discretion, will appoint a Mediator (and, if needed, any replacement Mediator) by rotation from the list of mediators on the NZDRC Website, subject to their availability and independence. No Party may challenge a Mediator’s appointment, except under the Rules below regarding Mediator independence, for example on the grounds of an actual conflict of interest.
6.15 NZDRC will use its best endeavours to appoint a Mediator within five Working Days of a valid Response and will notify the Parties of the appointment when it is made.
Party Representatives
6.16 A Party may (but is not required to) appoint one or more Representatives to provide advice or support in relation to a Mediation.
6.17 Each Representative must agree to preserve the privacy and confidentiality of the Mediation and must sign NZDRC’s standard form Confidentiality Agreement. A copy of the signed Confidentiality Agreement must be provided to NZDRC (and NZDRC will provide it to the other Party and the Mediator) as a condition of the individual participating in the Mediation.
7.0 The role of the Mediator
7.1 The Mediator does not decide or impose a solution but instead helps the Parties find their own solution. The Mediator's role is to assist the Parties in resolving their Dispute.
7.2 The Mediator must conduct the Mediation in private and in accordance with these Scheme Rules and any applicable New Zealand law. In all other respects, the Mediator may conduct the Mediation in any manner they think fit, having regard to the purpose of the Scheme (Rule 1.4), the nature of the issues in dispute, the overall circumstances of the Parties, and the principles of accessibility, independence, fairness, accountability, efficiency, and effectiveness.
7.3 The Parties must cooperate in good faith with the Mediator and every other Party to the Dispute in attempting to settle the Dispute.
Mediator independence
7.4 The Mediator must be an independent, suitable and impartial individual and must not be an adviser or advocate for anyone involved in the Dispute. While the Parties may have candid discussions with them, the Mediator must remain impartial and neutral and will not give legal advice or decide for any Party how to resolve the Dispute.
7.5 Any individual requested to act as a Mediator must provide NZDRC with a written declaration:
(a) confirming that, to the best of their knowledge, they are ready, willing and able to provide sufficient time, diligence and effort to ensure the conduct of the Mediation in a timely manner and in accordance with these Scheme Rules;
(b) advising whether, to the best of their knowledge, there are any circumstances (past or present) that are likely to give rise to justifiable doubts as to their impartiality or independence in the eyes of any of the Parties; and
(c) undertaking to comply with the continuing duty to disclose any circumstances arising which may be likely to give rise to justifiable doubts about their suitability, impartiality or independence in the eyes of any of the Parties (see Rule 10.5).
(7.6) The Mediator has a continuing duty to immediately disclose to the Parties and NZDRC any circumstances arising which may be likely to give rise to justifiable doubts about their suitability, impartiality or independence in the eyes of any of the Parties. This duty starts at the time of the Mediator's appointment and continues until the Mediation ends.
8.0 Mediation process
8.1 The Mediator will fix a timetable for the Mediation in consultation with the Parties.
8.2 The Mediation is a private and confidential process and will be held without prejudice to any other legal rights or remedies available to the Parties.
8.3 Any communication, whether written or spoken, made in connection with a Mediation is privileged, whether in accordance with the Evidence Act 2006, the common law or otherwise.
8.4 The Mediator will conduct the Mediation by telephone and/or video conference or any combination of those methods that the Mediator considers appropriate.
8.5 The Mediator will help the Parties to:
(a)identify and explore issues to be resolved;
(b) understand each other’s viewpoint;
(c) share information with each other;
(d) develop options to resolve the issues; and
(e) reach an agreement that accommodates the interests and needs of the Parties.
8.6 The Mediation Claim Form will be the Claimant’s opening position statement, and the Mediation Response Form will be the Respondent’s opening position statement in the Mediation. The Parties are strongly encouraged to comply with the Mediator’s requests or suggestions to provide Submissions and to share information with each other.
8.7 The Mediator may talk or meet with the Parties separately and/or jointly at any time before the Mediation ends. A Party may communicate confidential information to the Mediator and the Mediator will not disclose that information to the other Party without the disclosing Party’s consent.
8.8 All participants in the Mediation must keep all communications (written or oral) and documents disclosed during the Mediation private and confidential. They must not disclose them to any non-party except as set out under ‘Permitted Disclosures’ in Part 6 below or unless another exception applies under these Scheme Rules or at law.
The Parties may not, at any time before, during or after the Mediation, call the Mediator or NZDRC to testify in any legal or administrative proceeding concerning the Dispute or the nature and extent of any Settlement Agreement reached as a result of the Mediation.
8.9 The Parties may not call for the records, notes or work product of the Mediator or NZDRC for any purpose, including any legal or administrative proceedings that might arise before, during or after the Mediation. However, any Settlement Agreement resulting from the Mediation that is intended by the Parties to have legal effect and to be legally enforceable may be subpoenaed, called for or produced in any proceedings to which it is relevant, subject to any valid agreement by the Parties to the contrary.
9.0 End of Mediation
Settlement
9.1 If the Parties agree on all matters in dispute, such agreement must be recorded in a Settlement Agreement stating (among other things) which Party will be the Domain Name Holder or whether the Sub-domain registration will stand (as applicable). The Parties must notify the Mediator, and the Mediator must notify NZDRC, that a Settlement Agreement has been signed and any terms of the Settlement Agreement relevant to Rule 2 below. The Mediation ends when NZDRC receives any such Settlement Agreement.
9.2 NZDRC will notify DNC, and DNC will notify the .nz Registrar, of the terms of any Settlement Agreement notified to them that require DNC or the .nz Registrar to take action to give effect to the settlement.
9.3 Any action required to be taken by DNC or the .nz Registrar to give effect to the Settlement Agreement will be completed by DNC or the .nz Registrar as soon as reasonably practicable (and DNC will remove the Compliance Lock as necessary to enable the action to be taken). DNC will ensure that DNC and the .nz Registrar uses their best endeavours to fulfil their duties and obligations within five Working Days after receiving the notification by DNC. DNC will notify NZDRC when the required actions are completed.
9.4 Where the Settlement Agreement requires a change of Domain Name Holder, the new Domain Name Holder is deemed to have accepted the .nz Registrar’s standard terms and conditions.
Withdrawal by the Claimant
9.5 The Claimant can withdraw the Claim at any time before Mediation is completed by giving NZDRC a Notice of Withdrawal. The Claimant may resubmit a new Claim for the same or a substantially similar Dispute provided the Claim has not been settled by the Parties and is not a resubmission of a Claim that has been resolved by Expert Determination or Appeal (as determined under Rule 10.9).
No settlement
9.6 The Mediator may end the Mediation on their own initiative if:
(a) a Party is no longer willing or able to participate in the Mediation; or
(b) The mediator considers it unnecessary or impossible to continue the Mediation because they feel they cannot assist the Parties in resolving the Dispute or the Mediation will exceed the allotted number of hours or the maximum period.
9.7 Unless terminated earlier, the Mediation ends if agreement on all matters is not reached within 10 Working Days or within the allotted number of hours available for Mediation (whichever occurs first) after the Mediator is appointed.
If the Mediation is terminated, the Mediator will notify the Parties and NZDRC. Termination does not prevent the Claimant from submitting a Dispute for Expert Determination.
Part 4: Expert Determination
10.0 How to start Expert Determination
Claim submitted by Claimant
10.1 A Dispute can be referred to Expert Determination by the Claimant submitting an Expert Determination Claim Form to NZDRC. The Claim may concern more than one Domain Name, provided all Domain Names are registered in the name of the same Respondent (and see Rule 5.13(a) and the NZDRC Website regarding fees for Claims regarding multiple Domain Names or multiple parties).
10.2 The Claimant must provide all information required by the Expert Determination Claim Form and attach all necessary documents.
Costs of the Expert Determination
10.3 The Claimant must pay the Expert’s Fee before the Expert Determination can commence.
10.4 The Parties must pay their own Costs of the Expert Determination.
10.5 The Expert cannot order a Party to pay another Party’s Costs.
10.6 The Claimant must pay NZDRC the Expert’s Fee within two Working Days of submitting the Expert Determination Claim Form.
Acceptance of the Dispute by NZDRC
10.7 NZDRC will not accept a Dispute if the Expert Determination Claim Form is missing any of the required information, the Expert’s Fee has not been paid, or the Dispute otherwise does not comply with these Scheme Rules. NZDRC will give the Claimant three Working Days to provide an updated Expert Determination Claim Form that contains all required information or to pay the Expert’s Fee, after which NZDRC will advise the Claimant whether the Dispute is accepted or rejected (including reasons for any rejection). If the Claim is rejected because the Expert’s Fee has not been paid, the Claim is deemed to be withdrawn.
Resubmitted Claims are invalid
A Claim is not valid if it is in substance the resubmission of an earlier accepted Claim or Dispute that has been settled by the Parties or where a Determination has been issued in any previous Expert Determination or Appeal. There may be Appeal rights in relation to the Determination, but otherwise, the Dispute will not be reconsidered, and the Claim will be rejected. The Expert’s Fees paid will be forfeited.
10.8 In determining whether a Claim is in substance the resubmission of an earlier Claim or Dispute, NZDRC or, if appointed, the Expert will consider whether:
(a) the Claimant, the Respondent and the Domain Name at issue are the same as in the earlier case;
(b) the substance of the Claim relates to acts that occurred before or after the close of Submissions in the earlier case;
(c) if the substance of the Claim relates to acts that occurred before the close of Submissions in the earlier case, there are any exceptional grounds for the rehearing or reconsideration, bearing in mind the need to protect the integrity and operation of the Scheme; and
(d) the substance of the Claim relates to acts that occurred after the close of Submissions in the earlier Determination (acts on which the re-filed Claim is based should not be, in substance, the same as the acts on which the previous Claim was based).
Notification to Respondent
10.9 As soon as reasonably practicable and in any event within five Working Days of a Dispute being accepted and notified to the Claimant, NZDRC will:
(a) notify and provide a copy of the Expert Determination Claim Form to the Respondent; and
(b) instruct DNC to put a Compliance Lock on the Domain Name until the Conclusion of the Dispute Resolution Services (at which time DNC will remove the Compliance Lock).
10.10 DNC will activate the Compliance Lock as soon as reasonably practicable after receiving the direction from NZDRC.
Response submitted by Respondent
10.11 The Respondent may provide a Response to the Claim by submitting an Expert Determination Response Form within 10 Working Days after receipt of the Expert Determination Claim Form (unless an extension of time is granted under Rule 17). If the Response is late, it will be disregarded.
10.12 The Respondent must provide all information required by the Expert Determination Response Form and attach all necessary documents.
10.13 NZDRC will send the Response to the Claimant if it complies with the above Rules; otherwise, it will be rejected.
Reply
10.14 The Claimant may provide a Reply in answer to the Response sent to it by NZDRC by submitting an Expert Determination Reply Form within five Working Days after receipt of the Expert Determination Response Form (unless an extension of time is granted under Rule 10.18). If the Reply is late, it will be disregarded.
10.15 The Reply must be strictly in reply to the Response. It cannot raise any new issues. It may include supporting documents and new evidence only to the extent that they are relevant to the Reply.
10.16 NZDRC will send the Reply to the Respondent if it complies with the above Rules; otherwise, NZDRC will reject it.
Changes to Response Period or Reply Period
10.17 The NZDRC Registrar or, if an Expert has been appointed, the Expert may allow additional time for the Response or the Reply if the NZDRC Registrar or the Expert considers that additional time is reasonably required for any reason (for example, due to the size or complexity of the Claim and the Respondent has insufficient time to prepare a Response). An extension of time can be made at the request of either Party. However, a request must be made before the expiry of the relevant period. The NZDRC Registrar and Expert must disregard any late request unless there are extenuating circumstances.
Appointment of the Expert
10.18 NZDRC will appoint an Expert to determine the Dispute once the Dispute has been accepted and the Claimant has paid the Expert’s Fee or on receipt of a Response or Reply, or when the time for a Response or Reply has elapsed, whichever NZDRC considers appropriate. However, NZDRC will not appoint an Expert or take any other steps regarding the Claim until the Expert’s Fee is paid in full.
10.19 NZDRC will use its best endeavours to appoint an Expert within five Working Days after payment of the Expert’s Fee, receipt of a Response or Reply, or when the time for a Response or Reply has elapsed, whichever NZDRC considers appropriate. NZDRC will notify the Parties of the appointment when it is made.
10.20 NZDRC, at its discretion, will appoint an Expert (and, if needed, any replacement Expert) by rotation from the list of experts on the NZDRC Website, subject to their availability and independence. No Party may challenge an Expert’s appointment, except under the Rules below regarding Expert independence, for example, on the grounds of an actual conflict of interest.
Party Representatives
10.21 A Party may (but is not required to) appoint one or more Representatives to provide advice or support in relation to an Expert Determination. The manner of appointment differs before and after the Expert is appointed to ensure that the appointment does not create a possible conflict of interest once an Expert is appointed.
10.22 Before an Expert is appointed, a Party must notify NZDRC and every other Party of the name and contact details of any Representative they have appointed for the Expert Determination.
10.23 Once an Expert is appointed:
(a) a Party who wants to appoint a Representative or change their Representative must notify the Expert, NZDRC and every other Party of the name and contact details of their proposed Representative;
(b) the Expert’s prior approval must be obtained before that proposed Representative is appointed; and
(c) the Expert may withhold approval if they consider (in their discretion) that the individual's appointment could create an apparent or actual conflict of interest.
10.24 Each Representative must agree to preserve the privacy and confidentiality of the Expert Determination process and must sign NZDRC’s standard form Confidentiality Agreement. A copy of the signed Confidentiality Agreement must be provided to NZDRC (and NZDRC will provide it to the other Party and the Expert) as a condition of the individual participating in the Expert Determination.
11.0 Role of the Expert
11.1 The Expert makes a Determination that is binding on the Parties, subject to any Appeal under Rule 14.0 of these Scheme Rules, any order of the courts or agreement of the Parties.
11.2 The Expert must conduct the Expert Determination in private and in accordance with these Scheme Rules and applicable New Zealand law, including the principles of natural justice. In all other respects, the Expert may conduct the Expert Determination in any manner they think fit, having regard to the purpose of the Scheme (Rule 1.4), the nature of the issues in dispute, the overall circumstances of the Parties, and the principles of accessibility, independence, fairness, accountability, efficiency, effectiveness, and natural justice.
11.3 The Expert has the authority and powers set out in these Scheme Rules, including in Rule 12.0 below.
11.4 All communication with the Expert must be via NZDRC: the Parties and their Representatives must not communicate directly with the Expert unless directed otherwise by the Expert or NZDRC.
Expert independence
11.5 The Expert must be an independent, suitable and impartial individual and will not be an adviser or advocate for anyone involved in the Dispute or an individual who has been a Mediator regarding the Dispute. The Expert must remain impartial and neutral, and they will not give advice to the Parties.
11.6 Any individual requested to act as an Expert must provide NZDRC with a written declaration:
(a) confirming that, to the best of their knowledge, they are ready, willing and able to provide sufficient time, diligence and effort to ensure the conduct of the Expert Determination in a timely manner and in accordance with these Scheme Rules;
(b) advising whether, to the best of their knowledge, there are any circumstances (past or present) that are likely to give rise to justifiable doubts as to their impartiality or independence in the eyes of any of the Parties; and
(c) undertaking to comply with the continuing duty to disclose any circumstances arising which may be likely to give rise to justifiable doubts about their suitability, impartiality or independence in the eyes of any of the Parties.
11.7 The Expert has a continuing duty to immediately disclose to the Parties and NZDRC any circumstances arising which may be likely to give rise to justifiable doubts about their suitability, impartiality or independence in the eyes of any of the Parties. This duty starts at the time of the Expert’s appointment and continues until the Expert Determination ends.
12.0 Expert Determination process
What the Expert can determine
12.1 The Expert can determine:
(a) a Dispute, and the matters set out in the Claim and any Response or Reply;
(b) the Expert’s jurisdiction to determine a matter (for example, if there is a dispute about the eligibility of the Dispute, the Expert can determine that); and
(c) any matters necessary to carry out the Expert’s role under these Scheme Rules, including but not limited to those in this Rule
12.2 In making a Determination, the Expert must have regard to:
(a) the Claim;
(b) any Response or Reply that is served in time; and
(c) any other Submission provided by the Parties to the Expert provided it has not been generated within Mediation (unless otherwise agreed by the Parties).
Evidence and admissibility
12.3 Each Party will bear the burden of proving the facts relied upon to support its Claim or any affirmative defence, in each case on the balance of probabilities (more likely than not).
12.4 The Expert will determine the admissibility, relevance, weight, and materiality of any Submissions offered by the Parties.
12.5 The Expert may receive any Submission that may, in their opinion, assist them in dealing effectively with the Claim before them, whether or not the Submission would be admissible in a court of law, provided it has not been generated within Mediation (unless otherwise agreed by the Parties). The Expert may decline to receive any document or other Submission if the Expert believes it is in the overall interests of justice to exclude that document or other Submission from consideration.
Confidentiality
12.6 Expert Determination is a private and confidential process (subject to publication of Determinations and case summaries under Rules 13.5, 14.13 and 15.4). The Parties must keep all communications (written or oral) and documents disclosed during the Expert Determination process private and confidential. They must not disclose them to any non-party except as set out under ‘Permitted Disclosures’ in Part 6 below or unless another exception applies under these Scheme Rules or at law.
12.7 The Parties may not, at any time call the Expert or NZDRC to testify in any legal or administrative proceeding concerning the Dispute or the nature and extent of any Determination. The Parties may not call for the records, notes or work product of the Expert or NZDRC for any purpose.
Powers of the Expert
Power to make directions, rulings and requests
12.8 The Expert can make any directions, rulings or requests that they think fit in the conduct of the Expert Determination process. This is a general power and the specific powers under Rule 11 do not limit this general power. Directions, rulings or requests can be made at the request of any Party or on the Expert’s own initiative.
Expert may draw inferences and determine the Claim based on available information
12.9 The Expert’s power to determine a Claim is not affected by a Party's failure to comply with these Scheme Rules, respond to any requests or comply with any directions, rulings or requests. The Expert may make a Determination based on the information available to them.
12.10 The Expert may draw any reasonable inferences they think fit from any such failure and give any weight they think fit to information that was asked for or directed to be provided but was provided later than requested or directed.
Specific powers
12.11 Without limiting the Expert’s powers, the Expert may:
(a) determine that the Claim was brought in bad faith (for example, in an attempt at Domain Name Hijacking); and
(b) have regard to published determinations of other disputes (but is not required to do so). Published determinations are not binding precedents but are of persuasive value only. Determinations of an Appeal Panel are more persuasive than determinations of a sole Expert.
12.12 In making their Determination, the Expert must not consider any evidence of acts or omissions amounting to Unfair Registration or Fair Use that occurred more than three years before the date of the Claim.
The Determination will be made on the papers
12.13 The Expert will determine the Dispute based on the Submissions (but will disregard any late Response or Reply).
12.14 An Expert Determination is not an arbitration. The provisions of the Arbitration Act 1996 (or any substituted Act) do not apply to any Expert Determination under these Scheme Rules.
Substance of Determination
12.15 The Expert will Determine all matters in the Dispute, including the elements relevant to the Claim from among those listed in Rule 5. The Determination must contain the reasons for the Determination, including addressing each of the relevant elements according to the scope of the Dispute.
12.16 The extent of reasons that the Expert gives will be proportionate to the time available to the Expert to make the Determination and the nature, complexity and number of Disputes or matters for Determination.
12.17 A Claim will be either dismissed or accepted. If accepted, the Expert will order the Domain Name(s) to be transferred to the Claimant and/or that the Domain Name Holder will delete the applicable Sub-domain and not reinstate it at any time.
12.18 If the Domain Name Holder does not comply with the order to delete the Sub-domain within three Working Days after the expiry of the period for an Appeal from the Determination, DNC must suspend the related Domain Name until the order is complied with.
Form of Determination
12.19 The Determination must be in writing and be signed and dated by the Expert.
12.20 A failure to sign and date a Determination does not affect the validity of a Determination. The Expert will use their best endeavours to fix any failure to sign or date a Determination within five Working Days of receiving notice from NZDRC of the defect.
12.21 The Expert must submit the Determination in draft form to NZDRC for scrutiny before signing a Determination. Without affecting the Expert’s independence and autonomy, NZDRC may:
(a) make recommendations directed to identifying any clerical or typographical errors or errors of a similar nature in the Determination; and
(b) draw to the Expert’s attention any points of substance or internal inconsistencies in the Determination.
Timing of Determination
12.22 The Expert must make their Determination and issue it to NZDRC within 15 Working Days after the end of the Response Period or, if there is a Response, the end of the Reply Period.
12.23 NZDRC will give the Determination to the Parties and DNC as soon as practicable and in any event within five Working Days after the Expert has signed it. The Expert, or NZDRC at the Expert’s request, may correct any clerical or typographical errors or any errors of a similar nature in the Determination on their own initiative. Any corrections of this kind must be made within five Working Days of the date on which a copy of the Determination is given to the Parties. No additional Fees can be charged for the correction.
End of Expert Determination
12.24 The Expert Determination ends when a Determination is given to the Parties and any time for an Appeal Notice to be filed has expired, or when the Dispute is settled or the Claim is withdrawn.
12.25 The death of a Party does not end the Expert Determination, and the deceased individual will be substituted with their legal representative. This Rule does not apply if the Parties have agreed otherwise or if a cause of action is extinguished by law on the death of an individual.
Withdrawal by the Claimant
12.26 A Claim can be withdrawn unilaterally by the Claimant by providing a Notice of Withdrawal to NZDRC at any time before a Determination is issued.
12.27 If the Claimant withdraws the Claim, the Expert does not make a Determination. No portion of the Expert’s Fee is refunded.
13.0 Effect and enforcement of Determination
Determination is binding
13.1 The Determination is binding on the Parties unless and until any Appeal is determined (see Part 5 below) or the Dispute is finally determined by proceedings in a court, arbitral tribunal or other decision-making body (see Rule 2).
13.2 NZDRC will notify DNC, and DNC will remove the Compliance Lock to enable either DNC or the .nz Registrar to take action to give effect to the Determination.
13.3 DNC will use its best endeavours to ensure that any action required to be taken by DNC or the .nz Registrar to give effect to the Determination is completed as soon as practicable:
(a) if no Appeal is lodged within the Appeal Period, following the end of the Appeal Period; or
(b) if an Appeal is lodged within the Appeal Period, after the Appeal is Determined under these Scheme Rules.
13.4 Where the Determination requires a change of Domain Name Holder, the new Domain Name Holder is deemed to have accepted the .nz Registrar’s standard terms and conditions (unless the terms of the Determination require something different).
Publication
13.5 NZDRC and/or DNC will publish all Determinations, together with a case summary, which will include the Domain Name and may include the names of the Parties to the Dispute (but excluding any contact details of the Parties). The Parties consent to the Determination and case summary being published.
Part 5: Appeals
14.0 Appeal Process
14.1 A Party has the right to Appeal a Determination to an Appeal Panel within 10 Working Days after receipt of the Determination from NZDRC. A Party may do so by submitting an Appeal Notice to NZDRC and paying the Appeal Panel’s Fee in full at the time of submitting an Appeal Notice.
14.2 The Appeal Notice must provide detailed reasons or grounds for the Appeal, but it cannot contain any new evidence unless NZDRC or the Appeal Panel considers that it is in the interests of justice to admit that new evidence.
Costs of the Appeal
14.3 The Appellant must pay the Appeal Panel’s Fee before commencement of the Appeal.
14.4 The Parties must pay their own Costs.
14.5 The Appeal Panel cannot order a Party to pay another Party’s Costs.
Appeal Process
14.6 NZDRC will send the Appeal Notice to the other Party within three Working Days of receiving the Appeal Notice and payment of the Appeal Panel’s Fee in full.
14.7 The other Party may provide a Response to the Appeal Notice by submitting an Appeal Response Form within five Working Days from the date of receipt or deemed receipt of the Appeal Notice. The Response must explain why the Appeal should be rejected. It cannot include new evidence. The Appellant has the right to submit a Reply provided it is limited to addressing the matters in the Response only.
14.8 After the Response or, if there has been a Response, the Reply is submitted (or the deadline to submit the Response or Reply passes), NZDRC will appoint an Appeal Panel to determine the Appeal. Subject to Rule 9 below, the Appeal Panel will comprise three Experts selected by NZDRC.
14.9 The Expert that issued the Determination that the Appeal relates to must not be appointed to the Appeal Panel.
14.10 The Appeal Panel has the authority to hear Claims anew. This means that the Appeal Panel will consider the Claim from the beginning and will review all evidence and other Submissions as if the Claim is being heard for the first time.
14.11 The Appeal will be determined on the papers, and there will be no hearing. The Appeal process will be conducted in private (but the Determination and case summary may be published under Rules 14.13 and 15.4).
14.12 The provisions of these Scheme Rules relating to Expert Determination, with necessary modifications (and subject to the Rules in this Part 5), will apply to an Appeal as if references to the ‘Expert’ are references to the ‘Appeal Panel’ and on the basis that the Appeal process is an Expert Determination. However, there is no right of appeal under these Scheme Rules regarding the Determination of the Appeal Panel.
Publication
14.13 NZDRC and/or DNC will publish all Determinations, together with a case summary, which will include the Domain Name and may include the names of the Parties to the Dispute (but excluding any contact details of the Parties). The Parties consent to the Determination and case summary being published.
Withdrawal by the Appellant
14.14 An Appeal can be withdrawn unilaterally by the Appellant at any time before a Determination is issued by providing a Notice of Withdrawal to NZDRC.
14.15 If the Appellant withdraws the Appeal, the Appeal Panel does not make a Determination on the substantive matters. No portion of the Appeal Panel’s fee is refunded. The Appeal Panel may not make a Determination on Costs against or in favour of any Party.
14.16 The Appellant cannot submit a new Appeal against the Expert Determination.
Part 6: Other provisions
15.0 Permitted Disclosures
Disclosure under these Rules, to pursue a legal right or comply with any law
15.1 Confidential information can be Disclosed by a Party to the Dispute Resolution Services to a non-party only to the extent:
(a) necessary to enforce a Settlement Agreement (including, to the extent that it is disputed, whether there is a concluded Settlement Agreement); or
(b) necessary to comply with any law or other compulsory process (for example, a court order);
(c) as agreed in writing by the Party that owns or produced the confidential information.
15.2 A Party must notify NZDRC and the other Party (and NZDRC will notify the Mediator or Expert) of full details of and the reason for an intended Disclosure as soon as practicable before they intend to make the Disclosure.
Other Disclosures
15.3 NZDRC and DNC may collect information relating to Mediations or the use of any support services for the Dispute Resolution Services for business analysis, statistical, research and reporting purposes and may publish that information in anonymised or summary form that could not reasonably be expected to identify any particular Party, Representative, individual, entity or Dispute Resolution Practitioner.
15.4 NZDRC and DNC may publish Determinations and case summaries excluding any contact details of Parties.
16.0 Exclusion of liability and indemnity
16.1 The purpose of this Rule is to give a Contractor, Mediator, Expert, Appeal Panel, InternetNZ, DNC, and NZDRC the widest immunity from liability that the law will allow. Any reference to InternetNZ, DNC or NZDRC in these clauses includes a reference to the agents, employees and contractors of InternetNZ, DNC and NZDRC (including the NZDRC Registrar, and the .nz Registrar).
16.2 A Contractor, Mediator, Expert, Appeal Panel, InternetNZ, DNC and NZDRC are not liable for any act done or not done in relation to Dispute Resolution Services or these Scheme Rules. The Parties release each such individual or entity from all liability of any kind (including negligence, misrepresentation, breach of contract or breach of duty of any kind, including fiduciary or equitable). This release does not apply to the obligations regarding confidentiality, privacy and privilege in these Rules or to the extent that an individual or entity has acted fraudulently or has intentionally breached any obligation or duty.
16.3 If a claim is brought against a Contractor, Mediator, an Expert, an Appeal Panel member, InternetNZ, DNC or NZDRC despite Rule 16.2, the Parties (jointly and severally) indemnify each such individual or entity in respect of that claim.
16.4 Words of a Contractor, Mediator, Expert, an Appeal Panel member, InternetNZ, DNC or NZDRC made or given during the course of Dispute Resolution Services (whether written statements or oral comments) cannot be used in any action for defamation, libel, slander, or any similar claim.
Schedule 1 Unfair Registration
1.0 What is Unfair Registration?
1.1 Unfair Registration in relation to a Domain Name means it either:
(a) was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Claimant’s Rights; or
(b) has been, or is likely to be, used in a manner which is Unfair Use,
having regard to all relevant factors, which may include some or all the factors set out in this Schedule.
1.2 Unfair Use means the use of a Domain Name in a manner that takes unfair advantage of, or is unfairly detrimental to, the Claimant’s Rights.
1.3 In considering whether the use of a Domain Name is Unfair Use the relevant factors may include:
(a) the purpose and character of the use;
(b) the nature of the name and its use;
(c) the amount and substantiality of the use;
(d) the effect of the use on the potential market;
(e) other factors set out in this Schedule; and.
(f) whether the use is Fair Use.
1.4 Fair Use may include websites operated solely in tribute to or in criticism of an individual or business.
2.0 Evidence of Unfair Registration
2.1 A non-binding, non-exhaustive list of factors that may be evidence to support the Claimant’s Claim that the Domain Name is an Unfair Registration is set out below:
(a) Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:
(i) for the purposes of selling, renting or otherwise transferring the Domain Name to the Claimant or to a competitor of the Claimant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
(ii) as a blocking registration against a name or mark in which the Claimant has Rights; or
(iii) for the purpose of unfairly disrupting the business of the Claimant;
(b) Circumstances demonstrating that the Respondent is using the Domain Name in a way that is likely to confuse, mislead or deceive people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Claimant;
(c) The Claimant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the Domain Name Holder of domain names (under .nz or otherwise) which correspond to well-known names or trademarks in which the Respondent has no apparent rights and the Domain Name is part of that pattern;
(d) The Claimant can demonstrate that the Respondent has knowingly given false contact details to a Registrar and/or to DNC; or
(e) The Domain Name was registered arising out of a relationship between the Claimant and the Respondent, and the circumstances indicate that the Claimant and the Respondent intended that the Claimant would be entered in the .nz Register as the Domain Name Holder of the Domain Name.
2.2 There is a presumption of Unfair Registration if the Claimant proves that the Respondent was found to have made an Unfair Registration in three or more Dispute Resolution Service cases in the two years before the Claim was filed. This presumption can be rebutted by the Respondent by proving in the Response on the balance of probabilities (more likely than not) that the registration of the Domain Name is not an Unfair Registration.
3.0 How may the Respondent demonstrate that the Domain Name is not an Unfair Registration?
3.1 A non-binding non-exhaustive list of factors that may be evidence to rebut the Claimant’s Claim or the presumption under clause 2.2 above, and that may be evidence that the registration and use of the Domain Name is not an Unfair Registration include:
(a) Before being aware of the Claimant's cause for the Claim (not necessarily the Claim itself), the Respondent has:
(i) used or made demonstrable preparations to use the Domain Name or a Domain Name that is similar to the Domain Name in connection with a genuine offering of goods or services;
(ii) been commonly known by the name or legitimately connected with a mark that is identical or similar to the Domain Name; or
(iii) made legitimate non-commercial or Fair Use of the Domain Name; or
(b) The Domain Name is a Generic Term or a Descriptive Term, and the Respondent is making Fair Use of it in a way that is consistent with its generic or descriptive character;
(c) In relation to clauses 2.1(c) above; that the Domain Name is not part of a wider pattern or series of registrations because the Domain Name is of a significantly different type or character to the other domain names registered by the Respondent; or
(d) In relation to clause 2.1(e) above, that the Domain Name Holder’s holding of the Domain Name is consistent with an express term of a written agreement entered into by the Parties.
3.2 The Respondent's failure to use the Domain Name for e-mail or a website is not in itself evidence that the Domain Name is an Unfair Registration.
3.3 Trading in a Domain Name for profit and holding a large portfolio of domain names are of themselves lawful activities. Each Claim will be determined on its merits.
Version 4.2 (replaced by version 5 on 1 October 2024)
Version 4.2
1. Statement of purpose
1.1. This policy provides an alternative to the Courts in situations where:
1.1.1. Two parties are in dispute over who the registrant of a .nz domain name should be; or
1.1.2. Two parties are in dispute over the addition of a Sub-domain that is attached to a Domain Name registered directly at the second level and that Domain Name is a Generic Term.
1.2. Part A defines the policy and Part B the procedure supporting the policy.
2. Background
2.1 InternetNZ has the ultimate responsibility within New Zealand for the .nz domain name space, and maintains a shared registry system (SRS) for the management of .nz domain name registrations. InternetNZ has appointed the Domain Name Commission Limited ("DNCL") to manage and administer the .nz domain name space on behalf of InternetNZ.
2.2 The SRS establishes a single register for registering domain names and associated technical and administrative information. InternetNZ operates the register.
2.3 The registration of domain names and modification of information associated with that name on the register can be effected only by authorised Registrars. Registrars are responsible for the information they collect.
2.4 Neither Registrars nor the DNCL get involved in disputes regarding who the true Registrant of a domain name should be, but will undertake actions as directed either by the Courts or by the Experts under this policy.
2.5 This policy is one of the .nz policies that, as amended from time to time, all .nz Registrants agree to be bound by when registering or renewing a .nz domain name.
2.6 Thanks go to Nominet UK for their assistance in establishing the .nz Dispute Resolution Service.
3. Definitions
Appeal Panel means a panel appointed by the DNCL under paragraph B17.7;
Complainant means a third party who asserts to the DNCL the elements set out in paragraph 4 of this Policy and according to the Procedure, or, if there are multiple Complainants, the 'Lead Complainant' (see Procedure, paragraph B2.2);
Complaint means a Complaint submitted to the DNCL by a Complainant under paragraph B2;
Commencement of Dispute Resolution Service proceedings means the earliest date upon which the Complaint is deemed to have been received by the Respondent in accordance with paragraph B1.5;
Conclusion of Dispute Resolution Service proceedings means the date on which the Parties are notified of a Decision or the date on which the Parties settle the dispute;
Days means, unless otherwise stated, any calendar day other than Saturday, Sunday or any public holiday in New Zealand;
Decision means the Decision reached by an Expert and where applicable includes Decisions of an Appeal Panel;
Dispute Resolution Service means the service provided by the DNCL according to this Policy and the Procedure;
Domain Name means a domain name registered in the .nz register;
Domain Name Commission means Domain Name Commission Limited, a company wholly-owned by InternetNZ, responsible for the day to day oversight of the .nz domain name registration and management system;
Domain Name Hijacking means using the Policy in bad faith in an attempt to deprive a registered domain-name holder of a domain name;
DNCL means the Domain Name Commission Limited;
Expert means a person appointed to resolve a Domain Name Dispute under paragraphs B7 or B17 of the Procedure;
Generic Term means a word or phrase that is a common name in general public use for a product, service, profession, place or thing. For example: toy; shop; cleaner; lawyers; Wellington; sparkling-wine
Informal Mediation means impartial mediation which is conducted under paragraph B6 to facilitate an acceptable resolution to the dispute;
ISP means an internet service provider;
InternetNZ means Internet New Zealand Incorporated, the organisation that holds the .nz delegation and which operates and manages the Register;
Mediator means a person appointed to mediate a Domain Name Dispute under paragraph B6 of the Procedure;
Party means a Complainant or Respondent and Parties has a corresponding meaning;
Policy means this Policy;
Procedure means the Procedure under this Policy for the conduct of proceedings under the Dispute Resolution Service;
Register means the authoritative database and record of .nz domain names managed and operated by InternetNZ;
Registrant means the entity entered in the Register as Registrant in respect of the domain name;
Registrar means the entity entered in the Register as Registrar in respect of the domain name;
Reply means a submission made to the DNCL by a Complainant under paragraph B5;
Respondent means the entity in whose name or on whose behalf a Domain Name is registered and against whom the Complainant makes a Complaint;
Response means a submission made to the DNCL by a Respondent under paragraph B4;
Rights includes, but is not limited to, rights enforceable under New Zealand law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business;
Sub-domain means a name added to a .nz Domain Name by the Registrant. For example, the Domain Name could be ‘shop.nz’ and the sub-domain could be ‘anyname’, being in full ‘anyname.shop.nz’. In respect of this policy, a sub-domain is categorised as a domain name for the purposes of the policy and procedures.
Unfair Registration means a Domain Name which either:
i) was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR
ii) has been, or is likely to be, used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights;
PART A — POLICY
4. Dispute Resolution Service
4.1 This Policy and Procedure applies to Respondents when a Complainant asserts to the DNCL according to the Procedure, that:
4.1.1 The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
4.1.2 The Domain Name, in the hands of the Respondent, is an Unfair Registration.
4.2 The Complainant is required to prove to the Expert that both elements are present on the balance of probabilities.
4.3 With the introduction of .nz registrations at the second level, this Policy and Procedure also applies to Respondents when a Complainant asserts to the DNCL according to the Procedure, that:
4.3.1 There is a Domain Name registered directly at the second level of .nz and the Domain Name registered is a Generic Term such that the Complainant cannot demonstrate Rights in that Generic Term; and
4.3.2 The Registrant of that name at the second level has added a Sub-domain that has the appearance of being a Domain Name registered at the third level; and
4.3.3 The Complainant has Rights in respect of the name or mark which is identical or similar to the Sub-domain; and
4.3.4 The Sub-domain, in the hands of the Respondent, is an Unfair Registration.
4.4 The Complainant is required to prove to the Expert that:
4.4.1 The Complainant has asked the Registrant to stop using the Sub-domain and Domain Name combination in a manner that infringes the Complainant’s Rights; and
4.4.2 The registrant has declined to stop or has not responded to requests; and
4.4.3 The Complainant has Rights in respect of the name or mark which is identical or similar to the Sub-domain; and
4.4.4 The Sub-domain, in the hands of the Respondent, is an Unfair Registration.
4.4.5 The only remedy that will be granted is an order demanding the deletion of the applicable third level sub-domain, and that the name not be reinstated at any time.
4.4.6 Should the Registrant not delete the sub-domain after an order to do so, or should it be reinstated at any time, the Domain Name will be removed from the DNS so the name will not resolve. The Domain Name will only be reinstated to the DNS when the Domain Name Commission is satisfied that the Expert’s order has been complied with.
4.5 The ability to file a complaint under clause 4.3 will be reviewed after 2 years of operation of the policy with the review completed, and a decision made on whether this provision will remain, before the end of that third year of operation.
4.6 The DNCL recommends that both Parties use the guidance and help information, which can be found on the DNCL website.
5. Evidence of Unfair Registration
5.1. A non-exhaustive list of factors which may be evidence that the Domain Name is an Unfair Registration is set out in paragraphs 5.1.1 - 5.1.5:
5.1.1. Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:
(a) for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
(b) as a blocking registration against a name or mark in which the Complainant has Rights; or
(c) for the purpose of unfairly disrupting the business of the Complainant; or
5.1.2. Circumstances demonstrating that the Respondent is using the Domain Name in a way which is likely to confuse, mislead or deceive people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;
5.1.3. The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the Registrant of domain names (under .nz or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern;
5.1.4. The Complainant can demonstrate that the Respondent has knowingly given false contact details to a Registrar and/or to the DNCL; or
5.1.5. The Domain Name was registered arising out of a relationship between the Complainant and the Respondent, and the circumstances indicate that it was intended by both the Complainant and the Respondent that the Complainant would be entered in the Register as the Registrant of the Domain Name;
5.2. Failure on the Respondent's part to use the Domain Name for the purposes of e-mail or a web-site is not in itself evidence that the Domain Name is an Unfair Registration.
5.3. There shall be a presumption of Unfair Registration if the Complainant proves that the Respondent has been found to have made an Unfair Registration in three (3) or more Dispute Resolution Service cases in the two (2) years before the Complaint was filed. This presumption can be rebutted (see paragraph 6.3).
5.4. In making their Decision, the Expert shall not take into account any evidence of acts or omissions amounting to unfair registration or use which occurred more than three (3) years before the date of the Complaint.
6. How the Respondent may demonstrate in its Response that the Domain Name is not an Unfair Registration
6.1. A non-exhaustive list of factors which may be evidence that the Domain Name is not an Unfair Registration is set out in paragraphs 6.1.1 - 6.1.4:
6.1.1. Before being aware of the Complainant's cause for complaint (not necessarily the Complaint itself), the Respondent has:
(a) used or made demonstrable preparations to use the Domain Name or a Domain Name which is similar to the Domain Name in connection with a genuine offering of goods or services;
(b) been commonly known by the name or legitimately connected with a mark which is identical or similar to the Domain Name;
(c) made legitimate non-commercial or fair use of the Domain Name; or
6.1.2. The Domain Name is generic or descriptive and the Respondent is making fair use of it in a way which is consistent with its generic or descriptive character;
6.1.3. In relation to paragraph 5.1.5; that the Registrant's holding of the Domain Name is consistent with an express term of a written agreement entered into by the Parties; or
6.1.4. In relation to paragraphs 5.1.3 and/or 5.3; that the Domain Name is not part of a wider pattern or series of registrations because the Domain Name is of a significantly different type or character to the other domain names registered by the Respondent.
6.2. Fair use may include sites operated solely in tribute to or in criticism of a person or business.
6.3. If paragraph 5.3 applies, to succeed the Respondent must rebut the presumption by proving in the Response that the registration of the Domain Name is not an Unfair Registration.
6.4. Trading in Domain Names for profit, and holding a large portfolio of Domain Names, are of themselves lawful activities. The Expert will review each case on its merits.
7. Informal Mediation
7.1. After the DNCL has received the Parties' submissions under the Procedure (Part B), it will initiate and conduct a period of Informal Mediation under paragraph B6 of the Procedure.
8. Without Prejudice
8.1. Documents and information which are 'without prejudice' (or are marked as being 'without prejudice') may be used in submissions and may be considered by the Expert except that the Expert will not consider such materials if:
8.1.1. they are generated within Informal Mediation; or
8.1.2. the Expert believes that it is in the interests of justice that the document or information be excluded from consideration.
9. Appointment of Expert
9.1. If an acceptable resolution cannot be achieved by Informal Mediation the DNCL will notify the Parties that it will appoint an Expert when the Complainant has paid the applicable fees set out in paragraph B20.1 and within the time specified in paragraph B7.1. The Expert will come to a written Decision.
10. Notification and Publication
10.1. A Decision will be communicated to the Parties according to paragraph B16 and all Decisions will be published in full on the DNCL website.
10.2. Fees are payable by the Complainant or otherwise according to paragraph B20 only if an acceptable resolution has not been achieved by Informal Mediation and once the DNCL has notified the Parties that an Expert is to be appointed.
10.3. Decisions may contain personal information, including the contact details of the Parties, and the Parties consent to personal information being displayed in this way.
11. Exclusion of Liability
11.1 None of InternetNZ, the DNCL, any Registrar, Expert or Mediator, nor any of those entities' councillors, officers, employees or servants (as applicable) shall be liable to a Party for anything done or omitted, whether negligently or otherwise, in connection with any proceedings under the Dispute Resolution Service unless the act or omission is shown to have been in bad faith.
12. Appeal, Repeat Complaints and Availability of Court Proceedings
12.1. Either Party will have the right under paragraph B17 to appeal a Decision. The Appeal Panel will consider appeals on the basis of a full review of the matter and may review procedural matters.
12.2. The DNCL may refer questions of interpretation of the Policy and Procedure to the Appeal Panel. Any Decision rendered as a result of this referral will not affect any Decision in any other previous proceedings under the Dispute Resolution Service.
12.3. The DNCL will publish Decisions of the Appeal Panel. Appeal Decisions will not be binding precedents, but will be of persuasive value to Experts in future Decisions.
12.4. The operation of the Dispute Resolution Service will not prevent either the Complainant or the Respondent from submitting the dispute to a New Zealand court or decision-making body of competent jurisdiction or to an arbitral tribunal of competent jurisdiction.
12.5. If a Complainant has obtained a Decision in previous Dispute Resolution Service proceedings it will not be reconsidered by an Expert (but there may be rights of appeal, see paragraph 12.1 and paragraph B17). If the Expert finds that the Complaint is a resubmission of an earlier Complaint which has been resolved he or she shall reject the Complaint without a consideration of its merits.
12.6. In determining whether a Complaint is a resubmission of an earlier Complaint, or contains a material difference that justifies the Complaint being heard the Expert shall consider the following questions:
12.6.1. Are the Complainant, the Respondent and the Domain Name at issue the same as in the earlier case?
12.6.2. Does the substance of the Complaint relate to acts that occurred prior to or subsequent to the close of submissions in the earlier case?
12.6.3. If the substance of the Complaint relates to acts that occurred prior to the close of submissions in the earlier case, are there any exceptional grounds for the rehearing or reconsideration, bearing in mind the need to protect the integrity and smooth operation of the Policy and Procedure?
12.6.4. Does the substance of the Complaint relate to acts that occurred subsequent to the close of submissions in the earlier Decision? (Acts on which the re-filed Complaint is based should not be, in substance, the same as the acts on which the previous Complaint was based).
12.7. A non-exhaustive list of examples which may be exceptional enough to justify a re-hearing under paragraph 12.6.3 include:
12.7.1. serious misconduct on the part of the Expert, a Party, witness or lawyer;
12.7.2. false evidence having been offered to the Expert;
12.7.3. the discovery of credible and material evidence which could not have been reasonably foreseen or known for the Complainant to have included it in the evidence in support of the earlier Complaint;
12.7.4. a breach of natural justice.
13. Implementation of Expert Decisions
13.1. The Expert's powers, as part of a Decision, include powers to direct that a domain name should be cancelled, transferred, suspended or otherwise amended. The Expert may not, however, make any orders directing a Party to pay costs of the Dispute Resolution Service proceedings.
13.2. If the Expert makes a Decision that a Domain Name registration should be cancelled, suspended, transferred or otherwise amended, the DNCL will implement that Decision by causing any necessary changes to the Register to take place according to the process set out in paragraph B16. The details set out in the Complaint form will be used unless the Complainant specifies other details in good time.
14. Other action
14.1. The DNCL will not cause any Domain Name registration to be cancelled transferred, activated, deactivated or otherwise changed except as set out in paragraphs 13 and B3.4 and in accordance with the .nz policies, which are available on the DNCL website.
15. Transfers During a Dispute
15.1. A Domain Name registration may not be transferred:
15.1.1. if the electronic form of a Complaint has been received by the DNCL Dispute Resolution Service staff and the matter is pending the receipt of a valid paper copy to confirm the Complaint (to a maximum of five (5) Days); or
15.1.2. whilst Dispute Resolution Service proceedings are ongoing in relation to the Domain Name or for a period of ten (10) Days after the Conclusion of Dispute Resolution Service proceedings, unless to the Complainant as a result of a settlement reached between the Parties whether or not pursuant to Informal Mediation; or
15.1.3. whilst a court proceeding, other dispute resolution hearing or arbitration in respect of the Domain Name registration is ongoing in a New Zealand court or decision-making body of competent jurisdiction or arbitral tribunal of competent jurisdiction.
15.2. The DNCL may reverse any transfer of a Domain Name registration which does not comply with paragraph 15.1.
15.3. A Respondent may not without the Complainant's consent (which the Complainant will not unreasonably withhold) transfer the Domain Name to another Registrar whilst proceedings under the Dispute Resolution Service are ongoing in relation to the Domain Name or for a period of ten (10) Days after the Conclusion of Dispute Resolution Service proceedings.
16. Modifications to the Policy and Procedure of the Dispute Resolution Service
16.1. The Internet is an emerging and evolving medium and the regulatory and administrative framework under which it operates is constantly developing. For these reasons the DNCL reserves the right to make reasonable modifications to the Policy and Procedure at any time. Except where the DNCL is acting in pursuance of a statutory requirement or a court order, substantive changes will be implemented following a process of open public consultation. Each such change will be published in advance (where practicable, 30 calendar days in advance) on the DNCL website and will become binding and effective upon the date specified therein.
16.2. In any Dispute Resolution Service proceedings, the Parties will be bound by the Policy and Procedure which are current at the Commencement of Dispute Resolution Service proceedings, until the Conclusion of the Dispute Resolution Service proceedings.
17. General Information
17.1. If anyone has any questions regarding this document they should email [email protected]
PART B — PROCEDURE
B1. Communication
B1.1. The DNCL will send a Complaint (see paragraph B2) to the Respondent by:
B1.1.1. sending the Complaint by post, fax or e-mail to the Respondent at the contact details shown as the Registrant or other contacts in the Register for the Domain Name in dispute;
The DNCL may also, at its discretion use any or all of the following means:
B1.1.2. sending the Complaint in electronic form (including attachments to the extent available in that form) by e-mail to:
a) postmaster@;
b) if the Domain Name resolves to an active web page (other than a generic page which the DNCL concludes is maintained by an ISP for parking Domain Names), to any e-mail address shown or e-mail links on that web page so far as this is practicable; or
- B1.1.3. sending the Complaint to any addresses provided to the DNCL by the Complainant under paragraph B2.3.3 so far as this is practicable.
B1.2. Except as set out in paragraph B1.1 above, all written communication to a Party or a Party's representative under the Policy or this Procedure shall be made by fax, post or e-mail.
B1.3. Communication shall be made in English. E-mail communications should be sent in plain text so far as this is practicable.
B1.4. During the course of proceedings under the Dispute Resolution Service, if either Party wishes to change its contact details it must notify the DNCL of all changes.
B1.5. Except as otherwise provided in this Procedure or as otherwise decided by the DNCL or if appointed, the Expert, all communications provided for under this Procedure shall be deemed to have been received:
B1.5.1. if sent by facsimile, on the date transmitted; or
B1.5.2. if sent by post, on the second Day after posting;
B1.5.3. if sent via the Internet, on the date that the communication was transmitted;
B1.5.4. and, unless otherwise provided in this Procedure, the time periods provided for under the Policy and this Procedure shall be calculated accordingly.
B1.6. Any communication (except for communications relating to Informal Mediation) between:
B1.6.1. the DNCL and any Party shall be copied by the DNCL to the other Party and if appointed, the Expert, subject to paragraph B12; and
B1.6.2. a Party to another Party shall be copied by the sender to the DNCL and the DNCL will copy such correspondence to the Expert, if appointed.
B2. The Complaint
B2.1. Any person or entity may submit a Complaint to the DNCL in accordance with the Policy and this Procedure. In exceptional circumstances, the ability to accept Complaints may have to be suspended. If so, a message will be posted to that effect on the DNCL website which will indicate when the suspension is likely to be lifted.
B2.2. More than one person or entity may jointly make a Complaint. Where this occurs the joint Complainants must:
B2.2.1. all sign the hard copy of the Complaint (or have it signed on their behalf);
B2.2.2. specify one of the Complainants, or a single representative, who will be the 'Lead Complainant' who will receive correspondence on behalf of all the Complainants and is entitled to act on behalf of them all (e.g. in Informal Mediation); and
B2.2.3. specify which Complainant the Complainants wish to become the sole Registrant of each Domain Name(s) which are the subject of the Complaint if the Complainants are successful (this does not bind the Expert).
B2.3. The Complainant must send the Complaint to the DNCL in hard copy and (except to the extent not available for attachments) in electronic form. The Complaint shall:
B2.3.1. not exceed 2000 words (not including the text set out in paragraph B2.3.9 and annexes);
B2.3.2. specify whether the Complainant wishes to be contacted direct or through an authorised representative, and set out the e-mail address, telephone number, fax number and postal address which should be used;
B2.3.3. set out any of the Respondent's contact details which are known to the Complainant;
B2.3.4. specify the Domain Name(s) which is the subject of the dispute and the name or mark which is identical or similar to the Domain Name and in which the Complainant asserts it has Rights;
B2.3.5. describe in accordance with the Policy the grounds on which the Complaint is made including in particular: what Rights the Complainant asserts in the name or mark; why the Domain Name should be considered to be an Unfair Registration in the hands of the Respondent; and any applicable aspects of paragraph 5 of the Policy above, as well as any other grounds which support the Complainant's assertion;
B2.3.6. specify whether the Complainant is seeking to have the Domain Name transferred, suspended, cancelled or otherwise amended;
B2.3.7. tell the DNCL whether any legal proceedings have been commenced or terminated in connection with the Domain Name which is the subject of the Complaint;
B2.3.8. state that the Complainant will submit to the exclusive jurisdiction of the New Zealand courts with respect to any legal proceedings seeking to reverse the effect of a Decision requiring the suspension, cancellation, transfer or other amendment to a Domain Name registration, and that the Complainant agrees that any such legal proceedings will be governed by New Zealand law;
B2.3.9. conclude with the following statement followed by the signature of the Complainant or its authorised representative:
"I, the Complainant agree that my claims and remedies concerning the registration of the Domain Name, the dispute, or the dispute's resolution shall be solely against the Respondent and that none of InternetNZ , the DNC, any Registrar, Expert or Mediator, nor any of those entities' councillors, officers, employees or servants (as applicable) shall be liable for anything done or omitted in connection with any proceedings under the Dispute Resolution Service unless the act or omission is shown to have been in bad faith.";
"The information contained in this Complaint is to the best of my knowledge true and complete. This Complaint is not being presented in bad faith, including not being for a dominant purpose other than resolving the issue of who the proper Registrant of a Domain Name is, and the matters stated in this Complaint comply with the Policy and Procedure and applicable law.";
"I agree to the terms of the Dispute Resolution Service Policy and Procedure, and agree to be bound by any resulting Decision, subject to any rights of review or appeal."
and
"I acknowledge that if the Expert orders a transfer of the domain name(s) to me or at my request, I will need to select an Authorised .nz Registrar to provide me with the necessary .nz registry and other services in respect of domain name(s). I will advise the DNCL of my decision on request."
B2.3.10. attach four (4) copies of any evidence on which the Complainant relies including correspondence and any trade mark registration and/or evidence of use of or reputation in a name or mark, together with an index of the material attached.
B2.4. The Complaint may relate to more than one Domain Name, provided that those Domain Names are registered in the name of the Respondent.
B3. Notification of Complaint
B3.1. The DNCL will check that the Complaint sufficiently complies with the Policy and, if satisfied, this Procedure and, if so, will forward it to the Respondent together with an explanatory coversheet within three (3) Days of the receipt of the hard copy of the Complaint.
B3.2. If the DNCL considers that the Complaint does not sufficiently comply with the Policy and this Procedure, the Complainant will be promptly notified of the deficiencies identified. The Complainant shall have three (3) Days from receipt of notification within which to correct the deficiencies and return the Complaint, failing which the DNCL will deem the Complaint to be withdrawn. This will not prevent the Complainant submitting a different Complaint.
B3.3. The DNCL will promptly notify the Parties of the date of Commencement of Dispute Resolution Service proceedings.
B3.4. On receipt of the Complaint the DNCL will cause the domain name to be locked until the Conclusion of the proceedings, at which time the domain name will be unlocked.
B4. The Response
B4.1. Within fifteen (15) Days of the date of Commencement of Dispute Resolution Service proceedings, the Respondent shall submit a Response, if they choose to do so.
B4.2. The Respondent must send the Response to the DNCL signed, and in hard copy and (except to the extent not available for attachments) in electronic form at the addresses set out in the explanatory coversheet. The Response shall:
B4.2.1. not exceed 2000 words (not including the text set out in paragraph B4.2.5 and annexes);
B4.2.2. include any grounds that the Respondent wishes to rely upon to rebut the Complainant's assertions under paragraph B2.3.5 including any relevant factors set out in paragraph 6 as well as any other factors which rebut the Complainant's assertions
B4.2.3. specify whether the Respondent wishes to be contacted direct or through an authorised representative, and set out the e-mail address, telephone number, fax number and postal address which should be used;
B4.2.4. tell the DNCL whether any legal proceedings have been commenced or terminated in connection with the Domain Name(s) which is the subject of the Complaint;
B4.2.5. conclude with the following statement followed by the signature of the Respondent or its authorised representative:-
"The information contained in this Response is to the best of the Respondent's knowledge true and complete and the matters stated in this Response comply with the Policy and Procedure and applicable law."; and
B4.2.6. attach four (4) copies of any evidence on which the Respondent relies including correspondence and any trade mark registration and/or evidence of use of or reputation in a name or mark together with an index of the material attached.
B4.3. Within three (3) Days following the receipt of the signed copy of the Response, the DNCL will forward the Response to the Complainant.
B4.4. If the Respondent does not submit a Response, the Parties will be notified that an Expert will be appointed on receipt from the Complainant of the applicable fees according to paragraph B20 and in the absence of exceptional circumstances.
B5. Reply by the Complainant
B5.1. Within five (5) Days of receiving the Response from the DNCL, the Complainant may submit a Reply to the Respondent's Response, which shall not exceed 2000 words (not including annexes). The Reply should be confined to answering any new points raised in the Response and not previously dealt with in the Complaint. The Expert will not be obliged to consider any other material included in the Reply.
B5.2. If a Reply is submitted it must be submitted in signed, hard copy (including four (4) copies of all annexes) and as far as possible in electronic form. If the Complainant does not submit a Reply within five (5) Days the DNCL will proceed to Informal Mediation.
B6. Informal Mediation
B6.1. No Informal Mediation will occur if the Respondent does not file a Response. Within three (3) Days of the receipt of the Complainant's Reply (or the expiry of the deadline to do so), the DNCL will arrange for Informal Mediation to be conducted. Informal Mediation will be conducted in a manner which the DNCL, at its sole discretion, considers appropriate. The DNCL will appoint a Mediator on a rotational basis from its list of Mediators.
B6.2. A Mediator may only be a person named in the list of Mediators which the DNCL will maintain and publish along with the Mediators' qualifications. No Mediators' appointment will be challenged on the grounds that they are insufficiently qualified. Once the DNCL has appointed the Mediator, the Parties will be notified of the name of the Mediator appointed.
B6.3. Negotiations conducted between the Parties during Informal Mediation (including any information obtained from or in connection to negotiations) shall be confidential as between the Parties, the Mediator and the DNCL. Any such information will not be shown to the Expert. Neither the DNCL nor the Mediator nor any Party may reveal details of such negotiations to any third parties unless a court or decision-making body of competent jurisdiction orders disclosure, or the DNCL, the Mediator or either Party are otherwise required to do so by applicable laws or regulations. Neither Party shall use any information gained during mediation for any ulterior or collateral purpose or include it in any submission likely to be seen by any court or decision-making body of competent jurisdiction or arbitral tribunal of competent jurisdiction in this dispute or any later dispute or litigation.
B6.4. Notwithstanding paragraph B6.3, the Parties may refer to the fact of Informal Mediation in subsequent proceedings before any New Zealand court or decision-making body of competent jurisdiction or arbitral tribunal of competent jurisdiction in this dispute or any later dispute or litigation.
B6.5. If the Parties reach a settlement during Informal Mediation then the existence, nature and terms of the settlement shall be confidential as between the Parties, the Mediator and the DNCL, unless the Parties specifically agree otherwise, a court or decision-making body of competent jurisdiction orders otherwise, or applicable laws or regulations require it.
B6.6. No binding verbal agreements can be reached as part of the Informal Mediation: any settlement reached by the Parties must be in writing to be enforceable.
B6.7. The DNCL will notify the Registrar of a settlement reached in accordance with B6.5 where that settlement requires the Registrar to take action to give effect to that settlement.
B6.8. Any action to be taken by the Registrar will be completed by it as soon as possible, and no later than three Days, after receiving notice from the DNCL.
B6.9. Where the settlement requires a change of Registrant, the new Registrant is deemed to have accepted the Registrar's standard terms and conditions.
B6.10. If the Parties do not achieve an acceptable resolution through Informal Mediation within ten (10) Days, the DNCL will send notice to the Parties that it will appoint an Expert when the Complainant has paid the applicable fees set out under paragraph B20.1 within the time limit specified in paragraph B7.1. The Expert will be told whether or not Informal Mediation occurred, but will not be told what happened during Informal Mediation or why it failed to resolve the dispute.
B6.11. No Party may ask the DNCL (including its officers, employees, contractors, agents and any Expert or Mediator) to reveal information or materials gained as a result of any Informal Mediation under the Dispute Resolution Service unless such disclosure has been ordered by a court or decision-making body of competent jurisdiction. Neither Party shall call the Expert, Mediator or the DNCL (including its officers, employees, contractors, or agents) as a witness (either in person or to produce documents or other materials) in any proceedings which arise from, or are in connection with, the matters discussed in the mediation.
B7. Appointment of the Expert and Timing of Decision
B7.1. If the DNCL does not receive the Complainant's request to refer the matter to an Expert together with the applicable fees within ten (10) Days of the Complainant's receipt of the notice referred to in paragraph B6.10, the Complaint will be deemed to have been withdrawn. This will not prevent the Complainant submitting a different Complaint.
B7.2. Within five (5) Days of the receipt of the applicable fees from the Complainant the DNCL will appoint an Expert on a rotational basis from its list of Experts.
B7.3. An Expert may only be a person named in the list of Experts which the DNCL will maintain and publish along with the Experts' qualifications. No Expert's appointment will be challenged on the grounds that they are insufficiently qualified. Once the Expert has been appointed, the Parties will be notified of the name of the Expert appointed and the date by which, except in exceptional circumstances, the Expert will forward his or her Decision to the DNCL.
B8. Impartiality and Independence
B8.1. The Mediator and/or Expert shall be impartial and independent and both before accepting the appointment and during the proceedings will disclose to the DNCL any circumstances giving rise to justifiable doubt as to their impartiality or independence. The DNCL will have the discretion to appoint a substitute Mediator or Expert if necessary in which case the timetable will be adjusted accordingly.
B9. Communication Between Parties and the Expert
B9.1. A Party and the Expert must not communicate directly. All communication between a Party and the Expert must be made through the DNCL.
B10. Transmission of the File to the Expert
B10.1. The DNCL will forward the file except for documents relating to Informal Mediation to the Expert as soon as the Expert is appointed.
B11. General Powers of the DNCL and the Expert
B11.1. The DNCL, or the Expert if appointed, may in exceptional cases extend any period of time in proceedings under the Dispute Resolution Service.
B11.2. The Expert shall determine the admissibility, relevance, materiality and weight of the evidence.
B11.3. The DNCL shall decide a request by a Party to consolidate multiple Domain Name disputes in accordance with the Policy and this Procedure.
B12. Further Statement
B12.1. In addition to the Complaint, the Response and if applicable the Reply, any appeal notice and appeal notice response, the Expert may request further statements or documents from the Parties. The Expert will not be obliged to consider any statements or documents from the Parties which he or she has not received according to the Policy or this Procedure or which he or she has not requested. The Expert may request that a further statement be limited to a defined topic, and the Expert will not be obliged to consider any material beyond that requested.
B12.2. Any communication with the DNCL intended to be passed to the Expert which is not part of the standard process (e.g. other than a Complaint, Response, Reply, submissions requested by the Expert, appeal notice or appeal notice response) is a 'non-standard submission'. Any non-standard submission must contain as a separate, first paragraph, a brief explanation of why there is an exceptional need for the non-standard submission. The DNCL will pass this explanation to the Expert and the Respondent, and the remainder will only be passed to the Expert and the Respondent at the Expert's sole discretion. If there is no explanation, the DNCL may not pass on the document or information.
B13. In Person Hearings
B13.1. No in person hearings (including hearings by conference call, video conference and web conference) will be held unless the Expert determines in his or her sole discretion and in exceptional cases, that such a hearing is necessary to enable him or her to come to a Decision.
B14. Default
B14.1. If the DNCL finds that a submission by a Party exceeds the word limit, the submission will be returned to that Party who will within three (3) Days return a submission which complies with the word limits. If the DNCL does not receive the submission back within the deadline from:
B14.1.1. the Complainant, the Complaint will be deemed to have been withdrawn, which will not stop the Complainant from submitting a different Complaint; or
B14.1.2. the Respondent, the Parties will be notified that the Expert will be appointed when the Complainant has paid the applicable fees set out in paragraph B20 and in the absence of exceptional circumstances. Once appointed the Expert will decide the dispute based upon the Complaint and evidence attached to it.
B14.2. If, once the Expert has been appointed, and in the absence of exceptional circumstances, a Party does not comply with any time period laid down in the Policy or this Procedure, the Expert will proceed to a Decision on the Complaint. If the Expert has not been appointed the DNCL shall take any action which it deems appropriate in its sole discretion, unless prescribed by this Procedure.
B14.3. If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by the DNCL or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate.
B15. Expert Decision
B15.1. The Expert will decide a Complaint on the basis of the Parties' submissions, the Policy and the Procedure.
B15.2. Unless exceptional circumstances apply, an Expert shall forward his or her Decision to the DNCL within ten (10) Days of his or her appointment pursuant to paragraph B7.
B15.3. The Decision shall be in writing and signed by the Expert, provide the reasons on which it is based, indicate the date on which it was made, the place the Decision was made and identify the name of the Expert.
B15.4. If the Expert concludes that the dispute is not within the scope of paragraph 4, he or she shall state that this is the case. If, after considering the submissions, the Expert finds that the Complaint was brought in bad faith, for example in an attempt at Domain Name Hijacking, the Expert shall state this finding in the Decision. If the Complainant is found on three separate occasions within a 2-year period to have brought a Complaint in bad faith, the DNCL will not accept any further Complaints from that Complainant for a period of 2 years from the date of the third such Decision.
B16. Communication of Decision to Parties and Implementation of Decision
B16.1. Within three (3) Days of the receipt of a Decision from the Expert, the DNCL will communicate the full text of the Decision to each Party and the date for the implementation of the Decision in accordance with the Policy.
B16.2. The DNCL will publish the full Decision and the date that any action which the Decision requires will be taken, on the DNCL website.
B16.3. If the Expert makes a Decision that a Domain Name registration should be cancelled, suspended, transferred or otherwise amended, the DNCL will implement that Decision by causing the necessary changes to be made to the Register after ten (10) Days of the date that the Parties were notified, unless, during the ten (10) Days following the date that the Parties were notified the DNCL receives from either Party:
B16.3.1. an appeal or statement of intention to appeal complying with paragraph B17, in which case the DNCL will take no further action in respect of the Domain Name until the appeal is concluded; or
B16.3.2. official documentation showing that the Party has issued and served legal proceedings before a New Zealand Court or decision-making body of competent jurisdiction, or an arbitral tribunal of competent jurisdiction against the other Party in respect of the domain name. In this case, the DNCL will take no further action in respect of the Domain Name unless it receives:
a). evidence which satisfies it that the Parties have reached a settlement; or
b). evidence which satisfies it that such proceedings have been disposed of
B16.3.3. In the event of the DNCL being satisfied that a judgment, decision or award has been made directing or requiring that a Domain Name be cancelled, suspended, transferred or otherwise amended, the DNCL will implement that Decision by causing any necessary changes to the Register to take place and the Dispute Resolution Service proceeding will be terminated.
B17. Appeal
B17.1. Either Party shall have the right to appeal a Decision by submitting either:
B17.1.1. a statement of the intention to appeal (see paragraph B17.2), plus the non-refundable deposit (see paragraph B20.4), which must be followed within fifteen (15) Days by an appeal notice (see paragraph B17.3) and the balance of the fee (see paragraph B20.4); or
B17.1.2. an appeal notice (see paragraph B17.3) and the whole fee (see paragraph B20.4).
B17.2. A statement of intention to appeal should only contain sufficient information to make it clear that an appeal is requested. The statement of intention to appeal should not contain the actual grounds or reasons for appeal, and the panel of Experts will not be obliged to consider any such grounds or reasons.
B17.3. An appeal notice should not exceed 1000 words, should set out detailed grounds and reasons for the appeal, but shall contain no new evidence or annexes.
B17.4. Within three (3) Days of the receipt of the:
B17.4.1. statement of the intention to appeal and deposit; or
B17.4.2. appeal notice and the full fee,
the statement of intention to appeal or appeal notice (as the case may be) will be forwarded to the other Party.
B17.5. Within ten (10) Days of receiving the appeal notice from the DNCL, the other Party may submit an appeal notice response (paragraph B17.6).
B17.6. An appeal notice response must not exceed 1000 words, should set out detailed grounds and reasons why the appeal should be rejected but should contain no new evidence or annexes.
B17.7. Following the filing of an appeal notice response (or the expiry of the deadline to do so) an Appeal Panel of three Experts will be appointed. The test of impartiality shall apply to each appeal Expert. Subject to that qualification the Appeal Panel shall consist of:
B17.7.1. the Chair of the group of Experts, or at his or her discretion, an Expert of his or her choice; and
B17.7.2. the next available two independent Experts appointed by rotation from the list.
B17.8. The Appeal Panel should not normally take into consideration any new evidence presented in an appeal notice or appeal notice response unless they believe that it is in the interests of justice to do so.
B17.9. So far as is appropriate in the circumstances paragraphs B15 and B16 apply equally to appeal Decisions, except that:
B17.9.1. appeal Decisions should be returned by the Appeal Panel to the DNC within thirty (30) Days of the appointment of the last panellist, but this deadline may be extended by up to ten (10) Days by agreement with the DNCL; and
B17.9.2. appeal Decisions cannot be subject to any appeal within the Dispute Resolution Service.
B18. Settlement or Other Grounds for Termination
B18.1. If, before a Decision is made the Parties agree and notify the DNCL of a settlement, whether or not pursuant to Informal Mediation, proceedings under the Dispute Resolution Service will terminate.
B18.2. If, before a Decision is made, it becomes unnecessary or impossible to continue proceedings under the Dispute Resolution Service for any reason, the DNCL will terminate proceedings under the Dispute Resolution Service unless a Party raises justifiable grounds for objection within a period of time which the DNCL will determine and notify the Parties of.
B19. Effect of Court Proceedings
B19.1. If the DNCL is satisfied that legal proceedings relating to a Domain Name which is the subject of a Complaint are issued before a New Zealand court or decision-making body of competent jurisdiction or an arbitral tribunal of competent jurisdiction, before or during the course of proceedings under the Dispute Resolution Service and are brought to its attention, it will suspend the Dispute Resolution Service proceedings, pending the outcome of the legal proceedings.
B19.2. A Party must promptly notify the DNCL if it initiates or becomes aware of legal proceedings in a court or decision-making body of competent jurisdiction or arbitral tribunal of competent jurisdiction relating to a Domain Name which is the subject of a Complaint during the course of proceedings under the Dispute Resolution Service.
B19.3. Either Party may request, before or during the Dispute Resolution Service, an interim measure of protection from a Court.
B20. Fees
B20.1. The applicable fees in respect of the referral of proceedings under the Dispute Resolution Service to an Expert are $2,000 plus GST for disputes involving 1-5 Domain Names and only one Complainant. For disputes involving 6 or more Domain Names, and/or more than one Complainant, the DNCL will set a fee in consultation with the Complainant. Fees are calculated on a cost-recovery basis, and are passed on in their entirety to the Expert(s). The DNCL does not charge for its mediation or administration services in respect of the Dispute Resolution Service.
B20.2. Fees are payable by the Complainant only if an acceptable resolution has not been achieved after Informal Mediation and the DNCL notifies the Parties that an Expert is to be appointed.
B20.3. In exceptional circumstances, for example if an in-person hearing is held, the DNCL will request that the Parties pay additional fees to be agreed between it, the Parties and the Expert.
B20.4. The applicable fees for the submission of an appeal are $7,200 + GST. If the option is used to pay a deposit and the balance, the deposit is $800 + GST and non-refundable, and the balance is $6,400 + GST. If the deposit is paid, and the balance of the fee and/or appeal notice are not filed in time, that appeal is deemed withdrawn and the case will be closed.
B21. Exclusion of Liability
B21.1. None of InternetNZ, the DNCL, any Registrar, Expert or Mediator, nor any of those entities' councillors, officers, employees or servants (as applicable) shall be liable to a Party for anything done or omitted, whether negligently or otherwise, in connection with any proceedings under the Dispute Resolution Service unless the act or omission is shown to have been in bad faith.
B22. Modifications to the Policy and Procedure of the Dispute Resolution Service
B22.1. The Internet is an emerging and evolving medium and the regulatory and administrative framework under which the DNCL operates is constantly developing. For these reasons the DNCL reserves the right to make reasonable modifications to the Policy and Procedure at any time. Except where the DNCL is acting in pursuance of a statutory requirement or a court order, substantive changes will be implemented following a process of open public consultation. Each such change will be published in advance (where practicable, 30 calendar days in advance) on the DNCL website and will become binding and effective upon the date specified therein.
B22.2. The Parties will be bound by the Policy and Procedure which are current at the Commencement of the Dispute Resolution Service proceedings until the Conclusion of the Dispute Resolution Service proceedings.