[ga-full] RE: [ga] court curbs icann

[Harald Tveit Alvestrand <Harald@Alvestrand.no>]

At 12:39 18.05.2000 -0700, Roeland Meyer \(E-mail\) wrote:


>Aside from the obvious? I'm not sure, at this point, how this
>effects the UDRP.

It would seem to reaffirm the UDRP's view of itself in the scheme of things.
See in particular section 4 K of the UDRP at 
http://www.icann.org/udrp/udrp-policy-24oct99.htm, which clearly states 
that a court of law may overrule an administrative panel decision.

As I read the decision as reported, there are 2 significant parts that 
actually *increase* the status of the UDRP:

- He stayed the federal case. This indicates that he regards the outcome
   of the UDRP proceeding as worthy of hearing before proceeding.

- He *denied* the motion by Armitrage to stay the ICANN proceeding.
   (Given that it was a WIPO hearing, based in Switzerland, he might have
   realized that this wouldn't be trivial to implement.)

Reading the UDRP proceeding decision is also interesting.
To my mind, this is *exactly* how the UDRP should work:

"If Complainant desires to obtain relief based upon some allegations that 
Respondent overstepped or overstated the bounds of its arrangement with 
Complainant, or that no such arrangement exists, that argument is better 
addressed to a court, which is equipped to resolve such complicated factual 
issues."

In other words: "This matter is not a clear cut case. The UDRP does not 
apply. Go to court."
And it makes a point I made during the WIPO discussions: That it *must* be 
possible to bring a case before the UDRP panel to find out whether it is a 
case where the UDRP can be applied or not. Otherwise we need a meta-panel 
to decide whether a case can go to the panel, which may then have doubts 
cast upon its jurisdictions, which then need to be resolved by.....

I think this case indicates that the process is working, just about the way 
I thought we wanted it to work.
Not too bad.

                     Harald


--
Harald Tveit Alvestrand, EDB Maxware, Norway
Harald.Alvestrand@edb.maxware.no

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