[ga] UDRP Decisions Not Arbitrations Under FAA

["L. Gallegos" <jandl@jandl.com>]

There was a thread last month regarding the argument over whether the UDRP 
consituted 'arbitration' as defined by the FAA.  The following is a timely 
decision that precisely addresses this issue.  Following that is part of 
the text of the relevant thread from January of this year.

Leah

3RD CIRCUIT RULES UDRP DECISIONS NOT ARBITRATIONS UNDER FAA
The 3rd Circuit Court of Appeals has ruled that ICANN UDRP
decisions are not entitled to "extremely deferential" review
in the federal courts since UDRP cases do not fall under the
Federal Arbitration Act. 
http://caselaw.findlaw.com/data2/circs/3rd/013713p.pdf

(text from former thread)

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

You can do that, of course, but in the UDRP rules it is still considered 
to be an "administrative procedure" and forced upon so-called 
participants.  Using an academinc definition doesn't change the fact or 
the rules.  Courts are under no obligation to refer to or use the 
decisions made by UDRP panelists.  Many do not consider them at all.

> 
> (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.

In a contract of adhesion, yes.  Hopefully that will change. One cannot, 
at this time, register a domain under the ICANN system without agreeing to 

UDRP, so this is forced or consent under duress.  It is certainly not 
voluntary if one wishes to have an internet presence in the USG root.

> 
> 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?
> > 

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