Wednesday, May 22, 2013

ICANN'S Newest UDRP Company Poised to be the Most Respondent-Friendly

By Zak Muscovitch.

The ICANN Board announced (kinda, since I do not really consider that much of announcement, so thankfully great websites like DomainIncite.com, DomainNameWire.com, and TheDomains.com have reported the "announcement"), that the Arab Center for Dispute Resolution (the "ACDR"), was approved as the latest ICANN Uniform Dispute Resolution Policy ("UDRP") Dispute Resolution Provider.

As pointed out by the Internet Commerce Association under the leadership of Phil Corwin, ICANN, despite its unquestionable competence to provide adequate and responsible oversight of the UDRP process, has to-date, failed to put in place a "contract" between ICANN and any UDRP Dispute Resolution Provider (NAF, WIPO, the ADNDRC, and the CAC):

"It is simply inexcusable that ICANN accredits UDRP providers -- and thereby provides them with the power to extinguish or transfer domains -- when there is no standard contract that sets enforceable standards. Given the value of many domains and the basic rights that any registrant is entitled to, we intend to keep pushing for ICANN to do the right and responsible thing."

ICANN is apparently well-aware of this criticism, and responded in its "rationale", that:

"Other commenters suggested that ICANN develop contracts with each of its UDRP providers as a means to require uniformity among providers. Contracts have never been required of UDRP providers."

Many may be quite surprised that ICANN appears to be of the remarkable view that 'if something has been broken for so long, there is no point in fixing it now'. From my own perspective as a lawyer, having a contract in place which clearly establishes obligations, has traditionally been viewed to be a very effective way of establishing accountability, and accordingly it is quite surprising for a sophisticated, wealthy, cosmopolitan, and beautiful organization, like ICANN, to shy away from a mere contract.

That being said however, a contract is not the only means available to ensure consistency among the growing stable of diverse Dispute Resolution Providers. An oversight committee charged with regulating the performance and delivery of dispute resolution services is an equally effective mechanism, and arguably even more effective mechanism, for ensuring that all UDRP dispute resolution providers uniformly apply the UDRP rules from a practical perspective, and for ensuring that fairness is a hallmark of the UDRP process. 

I am not involved to any extent in ICANN governance (yet), but someone in the ICANN world must be able to at least justify what would appear to me, to be erroneous approach that appears inconsistent with ICANN's mandate and interests. ICANN actually makes this point for me I think, since ICANN, in its rationale, appeared to admit that uniformity of dispute resolution practices is indeed a concern:

"This is a positive advancement and helps address concerns of ICANN's ability to, in the future, identify areas where uniformity of action is of its obligation to abide by ICANN modifications that could enhance uniformity among providers."

Furthermore, ICANN makes my point even clearer I think, when it has admitted in response to ICA questions, that it will in fact have contracts for URS providers. If contracts are a good idea for URS, then why not UDRP? Your guess is as good as mine.


The ACDR a Boon to Domain Name Owner's?

Nevertheless, there is a potential silver lining in ICANN's decision to appoint the ACDR. In fact, the ACDR could even turn out to be a boon to domain name owners.

In reviewing the ACDR's draft Supplemental Rules, we can see that for a Respondent in a UDRP domain name dispute, the cost of having the three-person panel is relatively very low. If named as a Respondent at NAF or at WIPO, a domain name owner will have to fork out US $2,000 for the privilege of having its domain name dispute decided by three persons instead of one, in most cases. 

However, at the ACDR, the cost to a Respondent for the very same service, appears to be only US $900, meaning that it will be a lot more affordable to buy some justice at the ACDR. Of course, these prices may very well change, especially if the ACDR reads this blog post and realizes that they are now the most Respondent-friendly UDRP provider out there, which is bad for business when that business relies upon forum-shopping Complainants, as do all ICANN accredited Dispute Resolution Providers...when there is no contract or oversight committee-enforced uniformity.

A special thanks to Nat Cohen for getting me interested in this issue.

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