Rule 11(a) of the Rules of the Policy is a two clause provision. The first clause provides that “[u]nless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.” The second clause dilutes the imperative of the first by providing that the decision is “subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” What “circumstances” should be taken into account to make the determination are discussed in Daimler AG v. Whois privacy services, provided by DomainProtect LLC/Designbureau Ltd., Domain Manager, D2010-1269 (WIPO October 8, 2010).
In the event of a conflict the first response comes from the Provider. In Daimler, the Center sent an email communication to the parties in English and Russian requesting the Complainant to “provide at least one of the following”:
1) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; or
2) submit the Complaint translated into Russian; or
3) submit a request for English to be the language of the administrative proceedings. Such request shall include arguments and supporting material (to the extent not already provided in the Complaint) as to why the proceedings should be conducted in English.
The first and second requests conform with the requirements of the “shall be” clause. The alternative third request conforms with the “subject to” clause. The Complainant submitted a request “for English to be the language of the administrative proceedings.”
In its turn, the Respondent is invited to indicate its objection for the record and “to submit any arguments/supporting materials … as to why the proceedings should not be conducted in English,” Daimler. The Respondent’s sole participation – it submitted no arguments or supporting materials – was to insist (not unexpectedly) that the proceeding be conducted in Russian. Considerations in determining which language may include for example the language used in pre-Complaint correspondence between the parties, the identity of the parties, the nationality and place of residence of the parties, and any other evidence of familiarity with the requested language. Should the Complainant already have submitted a request in its Complaint, it is requested to confirm that it has nothing further to add to it.
Whatever the reason, the decision “must be exercised in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs,” Transtrands Handelsaktiebolag v. Jack Terry, D2005-0057 (WIPO March 21, 2005).
In Daimler, “the Complainant’s arguments as to why the proceedings should be conducted in English even though the Registration Agreement is in Russian, were primarily these”:
a) Respondent appears to be very familiar with the English language, as the disputed domain name resolves to a website containing English and German language content only, not Russian. A screen shot of this website taken by Complainant on July 29, 2010 (Annex C to the Complaint) shows content in English and some German, not Russian.
b) The phone number provided in the WhoIs information database is not a Russian telephone number. Rather it appears to be a toll-free number in the United States.
One other illustration to make the point. In Alstom, Bouygues v. Webmaster, D2008-0281 (WIPO May 8, 2008) the complaint was submitted in English. Prior to its submission, the Respondent answered the Complainant’s cease and desist letter with an offer to sell the domain name in English, which was unsuccessful, and the Respondent defaulted in answering the complaint. The Panel decided to hold the proceedings in English on the theory that the Respondent had shown proficiency in the language. The registration in Alstom was in Korean.