Friday, April 19, 2013

How To Select UDRP Panelists

Written by Zak Muscovitch

When a three-member Panel is selected by either the Complainant or the Respondent in UDRP proceeding at WIPO or the National Arbitration Forum (NAF), for example, each party gets to nominate one of the members to the Panel, and each party also gets to provide some input into the selection of the third member of the Panel, who will also act as the Chair of the Panel.

The most important consideration in nominating a panelist is to ensure that your nominees do not include someone who is known for having issued errant or totally unsupportable decision. What this means, in other words, is that if a particular panelist previously ordered the transfer of a domain name, or dismissed a case, when there was no logical or rational explanation for having done so, then you should make every effort to exclude this person from the selection process, as otherwise, rationality predictability will be out the window, at least insofar as that person's input is concerned.

Nevertheless, even having such a person on the Panel may not be the end of the world, since there are two other members who tend to ameliorate and moderate such a person's views. That is the beauty of a three-person Panel.

The second most important consideration is to match the subject matter with the Panelist. In cases that involve complex trademark law, one may prefer to nominate a panelist with extensive trademark knowledge. Conversely, if the case involves intricate UDRP Policy issues, perhaps someone who has written scholarly articles on the subject is most appropriate.

The third most important aspect is to nominate panelists who have a track record of making good decisions. This does not mean however, that they tend to side with one side over the other. Most panelists will receive cases which are mainly obvious cybersquatting cases, so if they side with the complainant in these cases, it is no indication at all that they will not give a respondent a fair hearing. Conversely, panelists who have ruled in favour of a respondent domain name registrant on many occasions are likewise not necessarily bad panelists, as they may have been selected by registrants who paid for the three-member panel, and did so because they had a very strong defense, thereby making it unsurprising that the respondent succeeded in such cases.

The main objective is of course to get a fair hearing, and by and large, the panelists are very experienced and fair, at both WIPO and NAF, which are the dispute resolution providers which hear the majority of domain name dispute cases. Retaining a domain name dispute attorney who is experienced in the panel selection process, can be a good idea as it will enable you to better evaluate your nominees to the Panel.

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