Re: [ga] Re: Mansfield Spam on a usenet newsgroup? - Parish the thought..??

["Andrew S. Mansfield" <andrew_mansfield@yahoo.com>]

John:

I stick by the simple, non-US law-based definitino of
arbitration.

(from Cambridge International Dictionary of English)

arbitrate
verb 
to make a judgment in (an argument), usually because
asked to do so by those involved 

arbitration
noun [U] 
to have the disagreement solved by an outside person
who has been chosen by both sides

arbitrator
noun [C] 
An arbitrator is a person whose official role is to
make a decision between two people or groups who do
not agree. 

The real-world effects of a UDRP decision in the case
of transfer are dramatic.  UDRP participants manifest
consent when registering a domain name and by not
choosing to go to national courts.

Andrew Mansfield
 
--- "John Berryhill Ph.D. J.D."
<john@johnberryhill.com> wrote:
> >
> > 5. The footnote below is just plain wrong.  Dr.
> > Berryhill appears to confuse enforcement of an
> > "arbitration" award in a US Court as a formal
> > arbitration with the definition of "arbitration." 
> Any
> > binding decision making process in which both
> sides
> > make a presentation and a third party renders a
> > decision based on principles of equity or law is
> an
> > arbitration.
> 
> Someone had better bring this to the attention of
> the folks who wrote the
> UDRP, as they seem to make a distinction between an
> administrative proceeding
> under the UDRP and an arbitration in UDRP Paragraph
> 8. (and, of course, the
> word "binding" is right out in accordance with Rule
> 4)  No court has applied
> a standard of review less than _de novo_ to a UDRP
> decision, because a
> "challenge" to a UDRP decision is not really a
> challenge to the UDRP
> decision, but an independent determination under the
> Lanham Act (see, e.g.
> the 1st Circuit's analysis of the corinthians.com
> case, or the Ontario
> Court's determination that the canadian.biz decision
> was right screwy).  The
> standard of review applied to a binding arbitration
> is much different than
> the manner that any court has treated a UDRP
> decision, which by its own terms
> is not binding on the parties.  In point of fact, a
> UDRP decision is not
> directed at the parties at all - it is directed to
> the registrar, since the
> registrar is the ONLY party who is ordered by a UDRP
> panel to do, or refrain
> from doing, anything at all.
> 
> But, if there is an explanation for the distinction
> between condition (a) and
> condition (b) in Paragraph 8, I'm all ears:
> 
> ---------
> 8. Transfers During a Dispute.
> 
> a. Transfers of a Domain Name to a New Holder. You
> may not transfer your
> domain name registration to another holder (i)
> during a pending
> administrative proceeding brought pursuant to
> Paragraph 4 or for a period of
> fifteen (15) business days (as observed in the
> location of our principal
> place of business) after such proceeding is
> concluded; or (ii) during a
> pending court proceeding or arbitration commenced
> regarding your domain name
> unless the party to whom the domain name
> registration is being transferred
> agrees, in writing, to be bound by the decision of
> the court or arbitrator.
> ----------
> 
> Now, under Par. 8 of the UDRP, is a UDRP proceeding
> itself an arbitration?
> If it is, then it sure makes one hash of that
> paragraph.  Why use two
> different words for the same thing?
> 
> 
> 
> 
> 


=====
Andrew S. Mansfield
mansfield@pobox.com

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