RE: [nc-udrp] RE: the issue of appeal

["Donahey, M. Scott" <MSD@tzmm.com>]

I think the appeal issue should be left open for comment and suggestion, and
the questions should not direct the thinking of the respondent.  For
example:
Do you think there should be a non-judicial appeal process for UDRP
decisions?
If so, what form do you think it should take?
How do you think such a process should be financed?

We are much more likely to get creative responses by fairly open-ended
questions.

Best regards.

M. Scott Donahey
Tomlinson Zisko Morosoli & Maser LLP
200 Page Mill Rd.
Palo Alto, CA  94306
Phone:  (650) 325-8666
Fax:      (650) 324-1808
msd@tzmm.com
www.tzmm.com

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		 -----Original Message-----
		From: 	tcole@arb-forum.com [mailto:tcole@arb-forum.com] 
		Sent:	Wednesday, October 17, 2001 8:13 AM
		To:	synthesis@videotron.ca; nc-udrp@dnso.org
		Subject:	[nc-udrp] RE: the issue of appeal

		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
		J9B 1N1                 e-mail:synthesis@videotron.ca

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