Re: [discuss] Notes - Names Council Meeting, San Jose - 062599

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

Three points seem to require clarification.  Only one, about fraud, is at
all major.

On Tue, 29 Jun 1999, Kent Crispin wrote:

> On Tue, Jun 29, 1999 at 10:12:10AM -0400, Michael Froomkin - U.Miami School of Law wrote:

[...]

> > It is also important to understand that the *potential* for injustice is
> > very real here.  We are talking about an ADR process in which
> 
> When one is driving down the street the *potential* for an auto
> accident is very real.  Most people take that as incentive to drive
> carefully, not as incentive to stop driving.  Therefore, it is
> perfectly reasonable to proceed despite the existence of potential
> problems. 

The analogy is inapposite: we have a lot of experience dealing with cars
on the road.   We can make rational choices.  Here we have a structure
where we simply lack any data about how much injustice there will be.  it
could be a lot.  It could be a little.  It is prudent and wise to create
a fault-tolerant (i.e. reviewable) system where one can.  If one can.
And if one can't, let's trumpet that.  Because it means the thing will not
scale to other types of issues.

> 
> > P = complainant
> > D= original DN registrant
> > 
> > If P & D are both US citizens, then barring a small set of special
> > circumstances the case is unreviewable.  An example of that small set is
> > fraud by the arbitrators.  The arbitrators getting the law completely
> > wrong will not be sufficient grounds to get the case into a court.  A US
> > court will not take the case because there is no cause of action after the
> > transfer of the DN:  there's no contract between P & D, and even if there
> > were it has not been violated; there's no tort; there's no violation of a
> > statutory duty.  Hence there is no case.
> 
> 1) from your other comments I gather that, in general, fraud by
> arbitrators is not reviewable.  

No.  "Fraud unravels all".  It is one of the few things that is always
reviewable if there's jurisdiction.  
[...]

> 2) the WIPO recommendations allow that if a court action is started,
> the arbitrators may suspend the ADR.  Thus there is a
> direct-to-arbitration-process avenue for judicial review available. 
> [In fact, I believe you claim that this will cause many preemptive
> court cases to be filed, so that the "review" by the courts can be
> instigated before the arbitrators make their decision.]
> 
> Given this fact, and the newness of the ADR procedures, it seems
> likely that the first cases will all be watched very closely by you
> and others, and will immediately go to court, if the registrant has
> any interest defending.

I do not propose to be a lawyer for every defendant.   Nor should their
rights depend on volunteers being around.

Furthermore, even if it's the case that the first ones are vigilant (and
wealthy enough to do this), the fact remains that any party who fails
to make the pre emptive attack will be taking risks.   This is, as I noted
in my commentary, a bad incentive structure.

> > 
> > > Moreover, there are explicit statements in the report that the
> > > recommendations are not static final results, but instead are an
> > > initial cut, and are intended to evolved over time.  
> > > 
> > 
> > Indeed.  That is one of the most worrying aspects of it.
> 
> You would prefer a system that cannot evolve??? Surely you misspoke. 
> 

Depends on in which directions it can go and who decides.

-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                    -->   It's hot here.   <--