[ga] WG A Report: Question b

[Amadeu Abril i Abril <Amadeu@nominalia.com>]

This is a rport on the question-b sub-group.

I apologize for the dealy in providing this report, but I was travelling and
wrongly assuming that I would be able to connect to the Net. Hotel phone
systems, modem adapters and ISPs decided otherwise :-/ (combined with my
limited technical abilities, most possibly...)

[Please note that this report has not been reviewed by sub-group members and
is therefore my sole responsibility. It is provided for information pruposes
in order to stimulate the debate and contirubtions form those not directly
involved in the discussions]

Our sub-group is dealing with the basic but nonetheless fascinanting questin
of whether we should have a standard dispuite resolution policy. It is basic
in the sense that all the rest depends on an affirmative answer to this
question (if not, the WIPO Final Report makes no sense at all). 

It should be noted that our discussions, as the WIPO Final Report itself, are
bound to gTLD and do not address in any way psossible dispute polices for the
so-called ccTLD or territorail TLDs (ISO-3166 TLDs).

As "standard dispute resolution policy" could still have many differnet
meanings, we devided it into the follwoing five sub-questions:

1. Do we need a uniform DRP at all?

Assumption: we face now a world of non-uniform (differenctiated) dispute
resolutions mechanisms: namely, the worlwide courts and legal systems, plus
the current NSI DRP.

If we are to build a DRP as an alternative to court litigation, this should be
uniform. If not, it would be a perfect waste of time and will leave us in the
same level of conflituality and insatisfaction that has been the commonplace
during the last three years.

Comment: Indeed most participants in the WIPO process and the current DNSO
works fervously favour a uniform DRP, as precisely the whole discussion
originated largely in the absence of such uniformity, and the unsolvabvle
multijurisdictional conflicts that, in many cases, result in the absolute
absence of any available dispute resolution mechanism (ie, results in the no
solution solution).

In fact recourse to Courts remain available to all parties. This is still an
added reason for escaping forum shopping and choice of laws hell-scenarios in
building the "alternative".

It has been noted by a former member of the WIPO Panel of Experts that the
recourse to Courts after an Alternative Dispute Resolution decision could be
limited or not available in many instnaces. This arguments tells nothing to
those favouring a uniform DRP per se, and has failed so far to convince all
those wanting to keep open the recourse to Courts, but it deserves further
consideration, and our sub-group will pay attention to this issue.

In sum: there is a general preference for a uniform dispute resolution
mechanism, with some resevations form some parties as to the implications of
such DRP.

2. Does a DRP need to be gTLD-based or uniform accross gTLDs?

Assumtpion: "unfirom" does not imply "universal". Equal things should be
treaten equally,; different situations desserve different treatment. At least,
uniform means unfiorm for each gTLD. At most, it means uniform accross all
possible gTLDs.

Comment: The current three gTLDs (.com; .org and .net) even if intended for
differnetiated use in their origin, have been used in similar ways for a long
time. In this regards, and specially given the fact that the proosoed WIPO DRP
is limted to cybersquatting (in tis large sense) no differnetiation should be
applied to them.

But if new gTLDs are to be created and some of them are specifficaly targeted
for not all-encompasing uses (personal gTLDs; non-commercial gTLDs...) a
differentiated DRP for them could be envisioned.

3. Does a UDP imply just uniform material rules or also procedural ones?

Assumption: Uniform in itself means not that much. At least, it means having
the same material, substantive rules (ie: what is cybersquatting; what are the
possible determinations etc). At most, it menas that procedural rules are
exaclty the same (terms; fees; rules of procedure etc).

Comment: While the arguments for uniform substantial rules seem compelling to
all those in favour of this system (and taking into account that there are
some people who simply do not support any alternative DRP or not an uniform
one), the arguments for unfiorm procedural rules seem less compelling. 

4. Is a UDP compatible with multiple ADR service providers? Is a single ADR-SP
a better choice?

Assumption: Uniform or not, DRP can be administrated by just one DRP-SP (for
instance: WIPO) or multiple DRP-SPs applying the same rules (for instance:
WIPO, ICC; UNCITRAL, AAA,-...). Either each registrar/registry chooses one
possible DRP-SP or there is an ICANN-approved list of UDR-SP common to all
registration authorities. The question then is "who makes the choice?"

Comment: Simplicity would faovur a single DRP-SP. But agian, the argument
falls short of being fully  compelling. A list of competent (and accredited by
ICANN accordng to some objective criteria) could all serve the same policy. In
this case all registration authorities should recognize all DRP-SPs, and
include them in the registration agreements. If not, consolidation of cases
and cohehrence of decisions would be seriously harmed.

Once again, some people insist that ·we already have the Courts". 

In case we finally recomned a multiple ADR-SP approach, we should provide
ICANN BoD with some guidance of the possible cirteria for accrediation.

5. Should a DRP be registry-based or regsitrar-based?

Assumption: we can achieve similar results by having a single dispute policy
accrosss all registrars (ie, x number of identical DRPs) or having just one
single DRP at the TLD level (in principle, at the registry level, but a single
registry could in principle have two separate policies if they are to run two
kinds of gTLDs that we might beleive desserve differnet SRPs, even if this is
not the case today).

Comment: it has been reightly pointed out that it should be either TLD-based
or regsitrr-based, as a registry could serve vaious TLDs, and even various
TLDs with differnet DRPs. Indeed, if the answer to the first question is that
we do want a unfirorm DRP for at least each gTLD, and at this stage a uniform
one for the current three gTLDs, the only explanation for going the
registrar-based DRP way is the refusal form NSI to accept ICANN’s authority or
any directive coming form it. "Realpolitik" considerations might finally
impose one way or another, but they should not bind our poicy recomendations.  

FTLD-based does not mean that the registryt administrating the given gTLD has
any responsibiity in writing or administrating such policy, as it has been
noted that these are not functions we could wich a registry to perform. It
simply means that it should be unfirom form that point dowwards, and that the
rgistry should implement the DRP decisions in the database.


Hope this report helps, and that sub-group members find it acurate. I
apologize once again for the delay in providing it, which is only my fault.

Please coment, discuss, disagree and refine. We will be monitoring the GA
list, but I suggest you send all coments to me so I can forward them to the
sub-group list and compile them.

Best regards,

Amadeu Abril i Abril
Amadeu@nominalia.com

PS: Besides the members listed in the gernal report sent by Jonathan Cohen,
Keith Gymer form the Business Constituency and Marylee Jenkins from the
IPConst are also members.