[nc-udrp] RE: the issue of appeal

["Cole, Tim" <tcole@arb-forum.com>]

In general I agree with Dan, but I am wondering if we aren't talking about
two distinct issues.

One issue has to do with the "res judicata" nature or finality of UDRP
decisions.  When can/should a provider refuse to accept a complaint from a
party that has lost before (hence the use of the term "Complainant")?
Although this could be called an "appeal" in some sense, today it is simply
a new complaint brought under the same procedures.

The second issue is an appeals process that some would like to establish,
presumably immediately following the issuance of a decision that either
party might pursue.

Perhaps we can find a way to merge both issues into one question set, but it
may lead to some confusion.

Timothy S. Cole
Assistant Director of Arbitration
National Arbitration Forum
651.604.6725
800.474.2371
mailto:tcole@arb-forum.com
http://www.arb-forum.com/



-----Original Message-----
From: Dan Steinberg [mailto:synthesis@videotron.ca]
Sent: Wednesday, October 17, 2001 8:44 AM
To: Cole, Tim; 'nc-udrp@dnso.org'
Subject: the issue of appeal


Thanks Tim, for your great work in reviewing the stuff to date. Your
point no. 8 was brought up by others so I think it bears further
analysis.

> 8. Question 15 appears to presume an answer.  Possible revision: "Should a
complainant that loses a UDRP case be permitted to re-file?  If so, under
what
> circumstances?  Should a three-member panel be required any time a party
wishes to re-file a complaint?"
>
I think this question indeed presumes an answer, but the revision as
well.  They both appear (correct me if I'm wrong) to assume a process
where complaints go to a 1-member panel and are appealed to a 3-member
panel. But that is not what the current UDRP structure is. Parties have
a choice between single-member and 3-member panels.  The wording also
presumes that a complainant is the one who will wish to appeal. Should
not the more generic term  'party'  be used instead of complainant and
respondent?  If not, then perhaps we should ask the question "do you
feel that complainants and respondents should have equal right to appeal
decisions rendered? If not, why?"

I think the more general solultion to the issue of questions regarding
appeal would be something like the following:

* do you think there should be the ability to appeal? if not skip this
section entirely
* do you feel that complainants and respondents should have equal right
to appeal decisions rendered? If not, why? (and skip the rest of the
questions in this section)

* should all appeals  to a decision rendered by single-member panel go
to a 3-member panel? if not, where should they go?
* where should appeals to a decision rendered in first instance by a
3-member panel go?
* if you support the notion of appeals to decsions rendered by a
one-member panel going to a 3-member panel, do you feel there should any
other  appeal possible after?

The above structure needs some fine tuning obviously.  But I think it
might serve to clarify more of the possible positions commenters might
take without presming too many answers.   Thoughts?

--
Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin  phone: (613) 794-5356
Chelsea, Quebec  fax:   (819) 827-4398
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