Re: [ga] UDRP Decisions Not Arbitrations Under FAA

[Jeff Williams <jwkckid1@ix.netcom.com>]

Leah and all former DNSO GA members or other interested parties,

L. Gallegos wrote:

> 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

  Thank you for reposting this Leah.  I had read it back in Jan I believe
and made some comments/observations in it's regard.  Why the
UDRP Task force has been dragging it's feet is really in part
a mystery to many here, but I suspect, that it is due to the IPC
and BC's lack of willingness to address their obvious errors
in judgment in light of recent and ongoing events, as well
as past poor decisions heavily influencing the ICANN BoD
when the UDRP was forced down the stakeholders throats..

>
>
> (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.

  Exactly right.  It should be recognized that the UDRP in it's current
form is rejected entirely by some Federal Circuit courts which I
pointed out some time ago with references.  The 9th and 10th are
two examples..

>
>
> >
> > (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.

  Exactly right here as well.  And this defense has been successfully used
on a number of well publicized occasions as I believe you already
know Leah.  What amazes me is that the ICANN BoD, legal counsel,
and now it seems that UDRP Task Force do not seem to understand
this very well if at all...


>
>
> >
> > 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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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 129k members/stakeholders strong!)
================================================================
CEO/DIR. Internet Network Eng. SR. Eng. Network data security
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number: 214-244-4827 or 214-244-3801


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