C-351410

1. Introduction

a. ADROIT is an independent Alternative Dispute Resolution entity, set up under Art. 21 of Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act or DSA).

b. ADROIT is hence acting in domestic and cross border disputes as an out-of-court dispute settlement body in the sense of Art. 21 DSA, for the following types of disputes arising between users and providers:

Decisions whether or not to remove or disable access to or; restrict visibility of the information
Decisions whether or not to suspend or terminate the provision of the service, in whole or in part, to the recipients;
Decisions whether or not to suspend or terminate the recipients’ account;
Decisions whether or not to suspend, terminate or otherwise restrict the ability to monetise information provided by the recipients.

The settlement of such disputes shall not be binding on either party.

c. ADROIT consists of the Executive board, the Panel of Experts and its team of Case Decision Makers as defined below.

d. All of ADROIT’s Case Decision-Makers have committed to the Standards laid out in ADROIT’s Code of Conduct and are completely independent and impartial in their decision-making. There is no influence from third parties or from the Board of Directors.

e. ADROIT offers ADR services only and is not part of the Malta Arbitration Centre. The decisions are not enforceable as arbitration awards.

2. Definitions

For the purpose of these Rules of Procedure the following terms shall be defined as set out below:

a. “Recipient” means the recipients f of digital services online-platforms or very large online-platforms, irrespective of whether these are natural persons or corporations with legal capacity, businesses or Recipients within the meaning of civil law.

b. “Provider” means the provider of online-platforms or very large online-platforms.

c. “Members” of ADROIT are all persons involved in dispute resolution, in particular the Executive Board, the Case Decision-Makers and the panel of experts.

d. “Case Decision-Maker” means the person who is appointed by ADROIT and is responsible for the dispute resolution of the specific case.

e. “Management Board” shall mean the ADROIT Management Board consisting of the Executive Officers and Shareholders of RGOAL Ltd.

f. “Panel of Experts” is a group of legal and technical experts from different fields who are appointed by the Board on a case by case basis as required.

g. “Digital Services Act” or “DSA” means Regulation (EU) 2022/2065 of the European Parliament and of the Council of October 19, 2022 on a single market for digital services and amending Directive 2000/31/EC (Digital Services Act).

3. Admissibility of Disputes

a. Admissible disputes

Disputes submitted to ADROIT shall be admissible provided that:

the Provider has submitted to the ADROIT procedure on an ad hoc basis for the particular claim after it was filed by a Recipient.
Disputes raised by Recipients from outside the EU are admissible only if the Provider consents to submit to the proceedings (permanently or on a case by case basis), provided that ADROIT has agreed to accept to undertake the resolution of such a dispute.
the provider of the online-platform/the provider of very-large online-platform is subject to Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). ADROIT can only accept claims directed at such entities.

b. Inadmissible Disputes

Disputes are inadmissible if:

the dispute does not relate to any of the subject matters referred to in Sec. 1.b.
the dispute is currently being settled in another competent forum;
the Recipient is below the age of 18 or otherwise legally incapacitated and is not adequately represented by a parent, guardian or lawyer;
the Complaint is not directed against an eligible decision or inaction of the Provider;
the Recipient is not obliged to submit to the internal complaint management of the provider of the online platform/very-large online platform in accordance with Art. 20 DSA, before the user can call on ADROIT as an external out-of-court dispute resolution body. ADROIT may however require the completion of the internal process on a discretionary basis.
the dispute raised by the Recipient is frivolous or vexatious and against good faith;
the dispute is being or has previously been considered by another alternative dispute resolution or out of court settlement entity or by a competent court or tribunal;
the Recipient has not submitted the complaint to ADROIT within one year from the date upon which the Recipient submitted the complaint to the Provider;
the Recipient has not provided a complete claims form or fails to submit missing information within 14 days after request from ADROIT.

ADROIT can dismiss a dispute during the proceedings should a reason for inadmissibility occur after initial acceptance of the dispute by ADROIT.

c. Decision on Admissibility and Appeal

Should ADROIT consider a dispute inadmissible on any of the grounds above, ADROIT will inform the Recipient and the Provider with a reasoned written explanation of the grounds for not considering the dispute within three weeks of receiving the complaint file;
A decision to hold a complaint inadmissible can be appealed by the Recipient and the Provider within one week after the decision was issued by written notice to the ADROIT Board. The Board will review the decision within four weeks from receipt of the Appeal;
Decisions of ADROIT can be appealed by the Recipient and the Provider within one week after decision was issued by written notice to the ADROIT Board substantiating any claims of material legal, procedural or factual errors. The decision on the acceptance of such an appeal is under the sole discretion of the ADROIT Board.

4. Procedure

a. General Principles

Following the general principle of fairness, equity and good faith as it firmly established in the national and European legal framework, ADROIT’s proceedings are based on the assumption that the parties have a genuine intention to resolve the dispute and will thus respect for the process and understand its requirements for honesty and sincerity and reasonable mutual cooperation and consideration for the interests of the other party. Where one of the parties disregards these principles, ADROIT reserves the right to issue a judgement by default or to terminate the proceedings altogether.

b. Case Decision-Maker

When a case is opened, ADROIT will appoint a Case Decision-Maker from ADROIT’s team with the required knowledge and experience, always ensuring that no conflict of interest exists. The respective case is randomly assigned to the Case Decision-Maker based on the internal distribution key. The Management Board has no influence on which case-decision maker is appointed for which case.

c. Standard Disputes

Standard disputes will be handled by a single Case Decision-Maker.

d. Complex Disputes

Disputes that

ADROIT in its sole discretion considers particularly legally or technically complex, or
have an important legal bearing, or
have a value above Euro 100.000

will be reviewed and decided by the Case Decision-Maker and two experts.

e. Referral to Panel

In such a case (4. d.) the presiding Case Decision-Maker shall request the Management Board to refer the case to a panel of 3 Case Decision-Makers to pass a decision. The Management Board will choose two experts from ADROIT’s Panel of Experts with the required background and experience (after having ensured no conflict of interest exists) to support the original Case Decision-Maker in the decision (unless the latter chose to recluse him-/herself from the case and was replaced by an alternative Case Decision-Maker by the Management Board).

f. Conflict of Interest

Should any Case Decision-Maker be conflicted, or is his impartiality or independence subject to any doubt, the dispute must be referred to an alternative Case Decision-Maker who is himself not under any conflict of interest. The Case Decision-Maker and any supporting experts are obliged to inform the ADROIT board whether he or she has any financial or personal interest in the outcome of the dispute or whether there exists any fact or circumstance or affiliation reasonably likely to create a presumption of bias. The Case Decision-Maker is obliged to report such conflict of interest without any undue delay according to ADROITs Code of Conduct, to which the Case Decision-Maker is contractually bound. Upon receiving any such information ADROIT is obliged to replace the Case Decision-Maker.

g. Submission of Information

It is the sole responsibility of the Recipient submitting a complaint to submit a complete claims form including a concise and clear but complete presentation of the underlying facts and circumstances that are relevant to the dispute. When submitting the dispute, it is the responsibility of the Recipient to furnish all documents which support the claims made or which may otherwise assist in a better understanding of the case. ADROIT reserves the right to request sufficient documentation to verify the identity of the Recipient at any stage of the proceedings. Likewise, Providers are responsible to submit any relevant documents that support their position when replying in the dispute.

h. Decision-Making

The dispute will be decided based entirely on information submitted by the Parties. ADROIT will use its reasonable efforts to resolve the dispute between the Recipient and Provider by reference to the relevant legal sources, the Provider’s applicable terms and conditions, the licence conditions as the case may be as well as these Rules of Procedure alway having regard to the established frameworks of equitable mediation.

i. Investigative Powers

ADROIT has no investigative powers and will therefore not investigate the facts of the dispute as a matter of principle and is under no obligation to request additional documents or evidence. ADROIT, however, reserves the right to notify a party where essential information is missing that is needed to decide the case provided this does in no way prejudice the impartiality of the processings. Information provided by the Recipient after the opening of the case may not be considered and follow up emails will not be responded to as a matter of policy in the interest of impartiality and resourceful case management.

j. Non-Response

Should the Recipient or the Provider not respond to an information request from ADROIT within 14 days, ADROIT may decide based on the decision presented by that time.

k. Default Decision

Should the Provider fail to lodge a response within 5 days after receiving the claim by e-mail, a decision can be taken by default at ADROIT’s sole discretion.

l. Communication

Once a dispute has been referred to ADROIT, the Recipient and the Provider should refrain from contacting each other and discussing the dispute. All communication should be channelled through ADROIT.

m. Correspondence

All correspondence between ADROIT and the Parties will be by e-mail and will be accessible for the opposing party upon request. ADROIT will not enter into any verbal communication with any Party regarding ongoing proceedings.

n. Language

Correspondence with ADROIT shall be in English.

o. Impartiality

ADROIT and ADROITs Case Decision-Makers will always act impartially and in good faith during the proceedings.

p. Actionable Decision

Any decision that ADROIT renders has to be clear to both parties and actionable.

5. Representation

a. General

The Parties are not obliged to retain a lawyer or a legal advisor, but they may seek independent advice or choose to be represented or assisted by a third party at any stage of the procedure.

b. Legal Representation

Should a party opt for representation by a legal advisor, the respective mandate is to be evidenced to ADROIT before a formal case can be opened.

c. Minors

Minors below the age of 18 must be represented by a parent, guardian or lawyer at any stage of the procedure.

6. Termination of Proceedings

The proceedings shall terminate

with a final decision made by ADROIT, or
when the Parties reach a settlement, or
the Recipient declares that he no longer has any interest in continuing the process and withdraws the claim. The Recipient can make such a declaration at any point during the proceedings, or
if it becomes known to ADROIT that a Party has breached confidentiality of the dispute settlement proceedings, especially if the dispute is reported to the media by one of the Parties, or
if the Provider withdraws from ADROITs jurisdiction through a change of the legal circumstances.

7. Time Limits

a. Completion

ADROIT will make every effort to conclude the dispute resolution process within ninety (90) days of receiving the dispute and all other relevant information required to process the dispute. Where unforeseen factors (like higher complexity of a particular case or force majeure) so require, ADROIT may extend this period by another ninety (90) days in its sole discretion by simple notification to the parties.

b. Delivery of Decision

The Decision of ADROIT will be delivered in print by postal service upon express request by one of the Parties.

c. Draft-Solution

The Parties shall inform ADROIT whether they accept the proposed preliminary draft-solution within two weeks after delivery of the draft-solution. Should one or both Parties fail to reply, this shall be interpreted as acceptance of the decision. In cases in which neither party comments within two weeks, the electronically delivered preliminary draft-solution automatically converts into a final decision without the need for further notification by ADROIT. A final document can be issued upon request by either party. If a party comments on the preliminary draft-solution, ADROIT will consider any such submissions as far as they are legally or factually relevant for the final decision. a further final decision will be issued, which must again be served on the parties electronically.

d. Court Outcome

The proposed solution reached within ADROITs proceedings may be different from an outcome determined by a competent court or tribunal in the same subject matter.

e. Binding Decision

According to Art. 21 Sec. 2 Subsec. 3 DSA, decisions issued in such disputes are not binding for the provider.

Participation in the ADROIT procedure shall not preclude the possibility of seeking redress through court proceedings. The Recipient may at any time during the proceedings take recourse to court.

8. Confidentiality

Recipients and Providers are required to keep the details of disputes and resulting decisions confidential. All information, records, reports or other documents received by ADROIT will be confidential. ADROIT will not be compelled to divulge such records or to testify or give evidence in regard to the mediation in any adversary proceeding or judicial forum. The Parties will maintain the confidentiality of the proceedings and will not rely upon them or introduce any part of them as evidence in any arbitral, judicial or other proceeding:

views expressed or suggestions or offers made by another party or the Case Decision-Maker in the course of the mediation proceedings;
admissions made by another party in the course of the mediation proceedings relating to the merits of the dispute;

The final decision of ADROIT may be used in judicial proceedings.

9. Data Protection

By submitting a dispute the Recipient consents to the transfer of any data from the Provider to ADROIT which is relevant to the dispute. Upon request, ADROIT will provide the Recipient and Provider with the evidence, documents and facts put forward by the other Party, including any statements made, or opinions given, by an expert. Information relating to fraud protection and AML measures adopted by the Provider will not be disclosed. ADROIT might be prevented from disclosing submissions to the other Party if any data referring to third parties is contained therein.

ADROIT will keep all data obtained during proceedings confidential and will handle such data in strict compliance with all relevant data protection regulations.

10. Publication

By submitting to ADROIT proceedings the Parties consent to the publication of an anonymized version of the decision. No publication will disclose any details that would allow third parties to identify Provider or Recipient as parties to the proceedings.

11. Liability

ADROIT accepts no liability for any loss, damage, loss of opportunity or inconvenience arising from any dispute between a Recipient and an approved license holder, the failure of a party to comply with the process and/or any agreement reached between the parties, the process itself, or the conduct of ADROIT in relation to the dispute.

12. Fees

Dispute settlement at ADROIT is free of charge for Recipients. However, ADROIT reserves the Right to charge fees to the Customer in cases where the complaint was manifestly raised in bad faith.