[nc-udrp] Re: the issue of appeal

[Dan Steinberg <synthesis@videotron.ca>]

Excellent points!

Actually there already is a 'res judicata' question in there somewhere else I
believe.  I will endeavor to find a way to merge these issues into a coherent
set of questions as part of the next draft.   Please note: although the
'if...then ignore this question and go to question x' appears cumbersome now,
when the eventual questionnaire gets published on the web we can take advantage
of automatic branching possibilities that will make the questionnaire flow much
better and do transparently what my words stumble over.

"Cole, Tim" wrote:

> 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
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