I'm at a place with poor connectivity right now.
Could one of you forward whatever messages fromthe attached are unique to
the question b list, since you two seem to be the only people authorized
to post to it?
Thanks.
--
A. Michael Froomkin | Professor of Law | froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
--> It's hot there. I'm elsewhere <--
In response to Randy Bush's request
---------- Forwarded message ----------
Date: Mon, 5 Jul 1999 23:40:50 -0400 (EDT)
From: Michael Froomkin - U.Miami School of Law <froomkin@law.miami.edu>
To: Amadeu Abril i Abril <Amadeu@nominalia.com>, Randy Bush <randy@psg.com>
Cc: Michael Froomkin <froomkin@law.miami.edu>
Subject: [question b] Access to courts
Dear Sirs,
Someone has kindly forwarded to me your correspondence regarding question
b.
I would like to point out one legal detail of some significance to your
debate regarding the issue of "uniform" processes: the WIPO report can say
whatever it wishes were true about the ADR it proposes having no
preclusive effects on subsequent judicial review, but that does not make
it true.
The truth, as far as I can tell, is that in a very substantial number of
cases, including the large majority of cases that would have to be heard
in a US court, but also [probably- no one can be sure] including many
cases in jurisdictions that limit the right of review of arbitration to
those that happen "within" the jurisdiction, THERE WILL BE NO JUDICIAL
REVIEW if the parties do not go to court before the ADR has run its
course.
The reasons for this are legal-technical, and I explain them in some
detail in my two WIPO reports at http://www.law.miami.edu/~amf
May I particularly direct your attention to
http://www.law.miami.edu/~amf/commentary.htm#_1_27 and
paragraphs 121-134 of http://www.law.miami.edu/~amf/critique.htm
I would also note that I pressed these points in my comments to RFC 3 and
in person in meetings with WIPO in my capacity as a WIPO-appointed
"Expert" but never received a reply. You will certainly search in vain
for a reply in the final report, which artfully says only that the
parties' agreement should impose no bar to judicial review (thus avoiding
the issue of the actual, inevitable, practical consequences of what
happens in the proposed ADR).
PS. I think Randy Bush's moderate position is one shared by many people
-- I would not in any way characterize it as "troublemaking"; also, the
idea of competition between legal systems has been a very familiar one
among legal scholars for over a generation, and has spawned an enormous
literature. I can provide citations in the unlikely event you care (much
of it consumed with debates between those who think there is a "race to
the bottom" vs. those who find a "struggle to the top").
Please feel free to forward this message to appropriate people or lists.
--
A. Michael Froomkin | Professor of Law | froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
--> It's hot here. <--
Forwarded with permission
---------- Forwarded message ----------
Date: Sun, 11 Jul 1999 17:43:22 +0200
From: Amadeu Abril i Abril <Amadeu@nominalia.com>
To: Michael Froomkin - U.Miami School of Law <froomkin@law.miami.edu>
Cc: Randy Bush <randy@psg.com>
Subject: Re: [question b] Access to courts
Michael Froomkin - U.Miami School of Law wrote:
>
> Dear Sirs,
Michael, sorry for anwering so late, but I have spent the week abroad, in a
half-holidays mode and without working net connectivity.
>
> Someone has kindly forwarded to me your correspondence regarding question
> b.
Rightly so.
>
> I would like to point out one legal detail of some significance to your
> debate regarding the issue of "uniform" processes: the WIPO report can say
> whatever it wishes were true about the ADR it proposes having no
> preclusive effects on subsequent judicial review, but that does not make
> it true.
>
> The truth, as far as I can tell, is that in a very substantial number of
> cases, including the large majority of cases that would have to be heard
> in a US court, but also [probably- no one can be sure] including many
> cases in jurisdictions that limit the right of review of arbitration to
> those that happen "within" the jurisdiction, THERE WILL BE NO JUDICIAL
> REVIEW if the parties do not go to court before the ADR has run its
> course.
Well, saying that this is the truth is perhaps a bit exagerated. I am also a
lawyer, and my take is rather differnt than yours. Even radically. But it is
perhaps a qeustion of different legal traditions, and the characterization of
what is arbitration and what is not.
>
> The reasons for this are legal-technical, and I explain them in some
> detail in my two WIPO reports at http://www.law.miami.edu/~amf
I know.
>
> May I particularly direct your attention to
> http://www.law.miami.edu/~amf/commentary.htm#_1_27 and
> paragraphs 121-134 of http://www.law.miami.edu/~amf/critique.htm
>
> I would also note that I pressed these points in my comments to RFC 3 and
> in person in meetings with WIPO in my capacity as a WIPO-appointed
> "Expert" but never received a reply. You will certainly search in vain
> for a reply in the final report, which artfully says only that the
> parties' agreement should impose no bar to judicial review (thus avoiding
> the issue of the actual, inevitable, practical consequences of what
> happens in the proposed ADR).
Sure. As it says nothing about the practical unavailability of court remedies
in MOST cases involing domain name disputes. Specially when you face
multijurisdictional cases, and the complainant is not in the US... (my
experience, take it as you want).
I mean that I fail to understand that it is a serious concern to you that such
"non-technical appeal" (ie, court recourse) would be difficult in certain
cases for losing regsitrants (and we have to assume that given the substantial
standards proposed, unfarily deprived registratns will be much less than
100%...) while you seem to give little wieght to the same situation regarding
challengers. With the aded ciurcumstance that in your case we are talking
about a losing party in an adversorial proceeding (as imperfect as you might
want) while in the other case there is NO alternative.
>
> PS. I think Randy Bush's moderate position is one shared by many people
> -- I would not in any way characterize it as "troublemaking"; also, the
> idea of competition between legal systems has been a very familiar one
> among legal scholars for over a generation, and has spawned an enormous
> literature. I can provide citations in the unlikely event you care (much
> of it consumed with debates between those who think there is a "race to
> the bottom" vs. those who find a "struggle to the top").
Would you be surpised if i told you that I have read a fair part oif it? This
a common debate alos in Europe, most espcially in the area of EU-sponsored
"liberalisation" (de-regulation).
In any case, my point was rather marginal and aaddrssing a coment form Randy
pointing out that ·dvierse solutions· thru courts and legal orders were not a
bad thing (OK, I oversimplify).
What I really dislike about US acadmics is that they often sound so arrogant ;-)))
Jokes aside, Randy's points are not "troublemaking". Behaviors might be; ideas
nev er. And as to the question if they are the shared position of many , lots
of few people is a factual question we won't discuss now.
Best regards,
Amadeu
PS: I hope that you recognize your concerns in the report I have just sent tp
GA and other DNSO lists. If not, pleae let me know.
Forwarded with permission
---------- Forwarded message ----------
Date: Sun, 11 Jul 1999 15:05:22 -0400 (EDT)
From: Michael Froomkin - U.Miami School of Law <froomkin@law.miami.edu>
To: Amadeu Abril i Abril <Amadeu@nominalia.com>
Cc: Randy Bush <randy@psg.com>, Michael Froomkin <froomkin@law.miami.edu>
Subject: Re: [question b] Access to courts
[Since yours was a private message, I have not forwarded this response
which quotes your original.
I would be very grateful if you would consider forwarding this dialog at
least to the working group, the relevant listserv archive, and perhaps
more broadly as you see fit. I wonder if you would also consider giving
your permission for me to forward it to others as well.]
On Sun, 11 Jul 1999, Amadeu Abril i Abril wrote:
I appreciate this dialog. I hope it will continue.
> Michael Froomkin - U.Miami School of Law wrote:
>
> Well, saying that this is the truth is perhaps a bit exagerated. I am also a
> lawyer, and my take is rather differnt than yours. Even radically. But it is
Perhaps you could explain why you think it's exaggerated? I am sincerely
curious. And no one has ever explained to me how I am exaggerating.
Recall I'm not saying judicial review is "never" available -- that would
be silly. I am saying it "often" will be unavailable to the losing
registrant, probably in a majority of the cases, yet will always be
available to the losing challenger.
I understand there is an issue as to whether a WIPO ADR would be an
"arbitration" under the laws of many civil jurisdictions (and even
England, on some accounts). What I do not understand, however, is where
this gets you (other than adding cost and complexity to the challenge...)
since once the ADR is over, if the registrant loses, the complainant has
the DN, and the registrant has no claim for breach of contract (indeed
there's no contract between the disputants! maybe there should be!) or
breach of a statutory duty. What does the losing original registrant
allege as the basis for judicial review? I would have thought that in
many civil law jurisdictions the losing-registrant-turned-complainant was
considerably *worse* off in situation where the ADR is not an
"arbitration" than where it is. Of course, I am not a civil lawyer, and I
imagine you are--so perhaps you could sketch out the nature of the claim
pursued by the original registrant (assuming no fraud, just alleged error,
on the part of the arbitrators)? Also, will it make a difference whether
the action is commenced within 7 days (before transfer) or not?
In England, to return to the common law world, if the courts were to
characterize the ADR as a "non-arbitration" then my surmise (based on 3
years working there with UK lawyers, but not on deep knowledge) is that
the position would be pretty much like in the US. I do recognize that the
English courts treat certain classes of ADR's as appealable
non-arbitrations, but in every such case of which I am aware, the reason
for this is that the body rendering the judgment is a quasi-official body
which essentially falls under English administrative law. It is very hard
for me to imagine that the WIPO ADR could ever have this treatment.
> perhaps a qeustion of different legal traditions, and the characterization of
> what is arbitration and what is not.
>
I have discussed the matter with a swiss friend who is a leading
arbitration lawyer, and his take, admittedly off the cuff, was that a
WIPO ADR would not be reviewable in Switzerland in the majority of cases.
> >
> > The reasons for this are legal-technical, and I explain them in some
> > detail in my two WIPO reports at http://www.law.miami.edu/~amf
>
> I know.
> >
Then how can you write, repeatedly, "In fact recourse to Courts remain
available to all parties"? "In fact"? "all"?
> > May I particularly direct your attention to
> > http://www.law.miami.edu/~amf/commentary.htm#_1_27 and
> > paragraphs 121-134 of http://www.law.miami.edu/~amf/critique.htm
> >
> > I would also note that I pressed these points in my comments to RFC 3 and
> > in person in meetings with WIPO in my capacity as a WIPO-appointed
> > "Expert" but never received a reply. You will certainly search in vain
> > for a reply in the final report, which artfully says only that the
> > parties' agreement should impose no bar to judicial review (thus avoiding
> > the issue of the actual, inevitable, practical consequences of what
> > happens in the proposed ADR).
>
> Sure. As it says nothing about the practical unavailability of court remedies
> in MOST cases involing domain name disputes. Specially when you face
> multijurisdictional cases, and the complainant is not in the US... (my
> experience, take it as you want).
First, more or less half the likely parties are in the US today, so US
rules are disproportionately important.
Second, under the WIPO ADR proposal there is in effect near-total in rem
jurisdiction in Virginia due to the rule that jurisdiction lies where the
registrar is, and the fact that at present NSI is the dominant registrar.
Third, I am arguing the US is in no way unique.
In light of this, my point seems rather central to the debate, and not one
that can be dismissed so easily, or in so conclusory a fashion.
I agree that there will be cases where judicial review is possible. I am
not suggesting that this is an empty set. Just that the other case is
very significant and quite probably dominant at least in the short and
medium run.
>
> I mean that I fail to understand that it is a serious concern to you that such
> "non-technical appeal" (ie, court recourse) would be difficult in certain
> cases for losing regsitrants (and we have to assume that given the substantialBut if I am correct that the problem in
I assume that a very substantial fraction of the cases where judicial
review would be appropriate will consist of cases when an unrepresented
party (pro se) loses. The federal courts (in the US at least) are
historically friendly to these parties and work hard to tease out their
case for them. The WIPO ADR process doesn't look likely to work that way,
since the emphasis is on fast & cheap.
> standards proposed, unfarily deprived registratns will be much less than
> 100%...) while you seem to give little wieght to the same situation regarding
I agree it's likely to be less than 100% :>. But note that if the
challenger is the victim, they always are no worse off than without the
ADR, but the same is not true of the registrant.
> challengers. With the ciurcumstance that in your case we are talking
> about a losing party in an adversorial proceeding (as imperfect as you might
> want) while in the other case there is NO alternative.
>
I'm sorry, what's the "other case"? They go to court in the first
place?--that's an adversorial proceeding too. Or did I miss your point?
(If your point is that there are disfunctional court systems where no
judicial challenge is possible, this is obviated by the provision creating
jurisdiction at the place of registration: currently Virginia, USA in
most cases. Note also that the complainant is not required to subject
itself to suit anywhere by virtue of bringing the ADR -- so the
complaint gets all the benefits of the proposal, and the registrant
nothing.).
As I have said many times, although the proposal to effectively cut out
judicial review for losing registrants but not in any way to cut it out
for losing challengers is one-sided and unfair, I can live with it (in
part because I hope and trust unfairness will be relatively rare if the
arbitrators are fair) for the current narrow proposal, if and only if
other objectionable features are modified. I think it's only fair to
say that this is an enormous concession to potential injustice, and that
it benefits TM holders solely at the disadvantage of non-Tm holders.
Increase the scope as many have proposed to areas in which the courts are
still evolving the applicable law, and it's past what I think is fair even
in a spirit of compromise.
> >
> > PS. I think Randy Bush's moderate position is one shared by many people
> > -- I would not in any way characterize it as "troublemaking"; also, the
> > idea of competition between legal systems has been a very familiar one
> > among legal scholars for over a generation, and has spawned an enormous
> > literature. I can provide citations in the unlikely event you care (much
> > of it consumed with debates between those who think there is a "race to
> > the bottom" vs. those who find a "struggle to the top").
>
> Would you be surpised if i told you that I have read a fair part oif it? This
> a common debate alos in Europe, most espcially in the area of EU-sponsored
> "liberalisation" (de-regulation).
> In any case, my point was rather marginal and aaddrssing a coment form Randy
> pointing out that ·dvierse solutions· thru courts and legal orders were not a
> bad thing (OK, I oversimplify).
>
> What I really dislike about US acadmics is that they often sound so arrogant ;-)))
>
> Jokes aside, Randy's points are not "troublemaking". Behaviors might be; ideas
> nev er. And as to the question if they are the shared position of many , lots
> of few people is a factual question we won't discuss now.
>
> Best regards,
>
> Amadeu
>
>
> PS: I hope that you recognize your concerns in the report I have just sent tp
> GA and other DNSO lists. If not, pleae let me know.
>
Since you are kind enough to ask, I guess I should say that I had some
differences with the way this was presented in your summary of question b.
I have prefaced your text with a } and added some comments:
}In fact recourse to Courts remain available to all parties. This is still
My point of course is that this is not a "fact" in any practical sense. In
a very important fraction -- most likely a majority -- only a losing
complainant has recourse; a losing registrant doesn't. So everyone should
stop saying everyone has access to courts when in fact they do not as it
creates a false sense of complacency and even-handedness. Once it is
understood that the ADR is the last stop in a very substantial fraction of
cases, minds will be concentrated on the problem of ensuring procedural
fairness in the ADR. Something which, by the way, is currently absent
(e.g. the notice period).
}an added reason for escaping forum shopping and choice of laws
It is my understanding that this ADR, like all others, does not
change the issue of applicable choice of law. If you feel differently,
could you please explain why? The panel will still have to decide on and
examine the relevant law to see whether the DN holder has " no rights or
legitimate interests in respect of the domain name". How could this issue
be determined without reference to a legal system?
}hell-scenarios in building the "alternative".
}It has been noted by a former member of the WIPO Panel of Experts that
}the recourse to Courts after an Alternative Dispute Resolution decision
}could be limited or not available in many instances. This arguments
}tells nothing to those favoring a uniform DRP per se, and has failed so
What do you mean "tells nothing"? And is this a fair presentation of my
view? My view is quite contrary: it tells us a great deal.
(1) It tells us the ADR is biased towards the complainant who always gets
two bites at the apple and against the registrant who frequently only gets
one and thus calls into question the fundamental fairness of the edifice;
and
(2) it tells us how important it is to ensure procedural and substantive
fairness in the ADR because, contrary to the oft-chanted and substantive
false--yes false--mantra chanted by ADR supporters it is not the case that
"In fact recourse to Courts remain available to all parties" in any
meaningful sense. It is not a "fact". It is--I repeat--"false". As in
"contrary to fact." It pains me to have to harp on this, but I have yet
to see a legal analysis that challenges the substance of what I have said.
Without that, I cannot see how a person can say, "In fact recourse to
Courts remain available to all parties". Try "some". Or, "almost all
losing complainants and the minority of losing registrants who have the
good fortune to be able to bring suit in a jurisdiction that will hear
their complaint."
}far to convince all those wanting to keep open the recourse to Courts,
}but it deserves further consideration, and our sub-group will pay
}attention to this issue
Perhaps this is the essence of our mis-understanding: my point is not
uniquely directed at the issue of "uniform" policies, although it is
relevant to it. It also goes critically to the issue of the scope of
those policies (they don't scale; the greater the substantive
jurisdiction, the more certain and frequent the unfairness). And, most
important in the short run, it underlines the importance of building in
protections for unrepresented parties, most notably reasonable time limits
based on actual notice, and strong generic protections for expressive
activities.
A good starting point for redressing the balance would be to consider the
terms of a contract that the complainant should sign as a condition of
commencing the proceedings.
As a starter, the complainant could be asked to consent to jurisdiction
for an appeal in the various places. This, though, doesn't get to the
main point - how to manufacture a cause of action for a losing DN
registrant. In the US this is not easy, since the courts take a
dim view of the practice of collusive attempts to create triable issues.
--
A. Michael Froomkin | Professor of Law | froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
--> It's hot here. <--
Forwarded with permission
---------- Forwarded message ----------
Date: Sun, 11 Jul 1999 21:46:03 +0200
From: Amadeu Abril i Abril <Amadeu@nominalia.com>
To: Michael Froomkin - U.Miami School of Law <froomkin@law.miami.edu>
Cc: Randy Bush <randy@psg.com>
Subject: Re: [question b] Access to courts
Michael Froomkin - U.Miami School of Law wrote:
>
> [Since yours was a private message, I have not forwarded this response
> which quotes your original.
>
> I would be very grateful if you would consider forwarding this dialog at
> least to the working group, the relevant listserv archive, and perhaps
> more broadly as you see fit. I wonder if you would also consider giving
> your permission for me to forward it to others as well.]
Michael, I will forward your prvious mail, and this one if you want so. As for
my answer, well, it was not in fact so, but just a "receipt"· of yourcoments,
and a ratehr expeditive reaction to some of your points. The important mesg
there was "got it, as it was long time ago; and will put it in the report".
If you want to forward the whole thing, I have nothing agaisnt.
>
> On Sun, 11 Jul 1999, Amadeu Abril i Abril wrote:
>
> I appreciate this dialog. I hope it will continue.
Sure. As you would remember form Rio de Janeiro (apparently to your surprise;
and this was a surprise to me ;-)) we disagree in far less issues than you
might expect. But I will not be able to answer in detail until next Wed I am
afraid ( I scrolled thru your mail and it seems long and dense). I am flying
thalf fo the time, andhave to prepare a ragehr urgnet and complicate legal doc
for tomorrow morning.... So please be patient.
>
> > Michael Froomkin - U.Miami School of Law wrote:
> >
> > Well, saying that this is the truth is perhaps a bit exagerated. I am also a
> > lawyer, and my take is rather differnt than yours. Even radically. But it is
>
> Perhaps you could explain why you think it's exaggerated? I am sincerely
> curious. And no one has ever explained to me how I am exaggerating.
> Recall I'm not saying judicial review is "never" available -- that would
> be silly. I am saying it "often" will be unavailable to the losing
> registrant, probably in a majority of the cases, yet will always be
> available to the losing challenger.
>
* Your inmplication that aritration forecloses judicial review is correct, but
what is proposed would not be deemed as arbitration in most juriscd ition I know.
* In many cases the unavailability of judicial recourse is "prior" to the
WIPO-proposd ADR. It is a fact of lack of availability of relevant forum,
clearly identified.
This is why I emant that this was a bit of an exaggeration. Unavailability is
not that much aggravated by the WIPO proposal, in my view.
> I understand there is an issue as to whether a WIPO ADR would be an
> "arbitration" under the laws of many civil jurisdictions (and even
> England, on some accounts). What I do not understand, however, is where
> this gets you (other than adding cost and complexity to the challenge...)
> since once the ADR is over, if the registrant loses, the complainant has
> the DN, and the registrant has no claim for breach of contract (indeed
> there's no contract between the disputants! maybe there should be!) or
> breach of a statutory duty. What does the losing original registrant
> allege as the basis for judicial review? I would have thought that in
> many civil law jurisdictions the losing-registrant-turned-complainant was
> considerably *worse* off in situation where the ADR is not an
> "arbitration" than where it is. Of course, I am not a civil lawyer, and I
> imagine you are--so perhaps you could sketch out the nature of the claim
> pursued by the original registrant (assuming no fraud, just alleged error,
> on the part of the arbitrators)? Also, will it make a difference whether
> the action is commenced within 7 days (before transfer) or not?
>
> In England, to return to the common law world, if the courts were to
> characterize the ADR as a "non-arbitration" then my surmise (based on 3
> years working there with UK lawyers, but not on deep knowledge) is that
> the position would be pretty much like in the US. I do recognize that the
> English courts treat certain classes of ADR's as appealable
> non-arbitrations, but in every such case of which I am aware, the reason
> for this is that the body rendering the judgment is a quasi-official body
> which essentially falls under English administrative law. It is very hard
> for me to imagine that the WIPO ADR could ever have this treatment.
>
> > perhaps a qeustion of different legal traditions, and the characterization of
> > what is arbitration and what is not.
> >
>
> I have discussed the matter with a swiss friend who is a leading
> arbitration lawyer, and his take, admittedly off the cuff, was that a
> WIPO ADR would not be reviewable in Switzerland in the majority of cases.
>
> > >
> > > The reasons for this are legal-technical, and I explain them in some
> > > detail in my two WIPO reports at http://www.law.miami.edu/~amf
> >
> > I know.
> > >
>
> Then how can you write, repeatedly, "In fact recourse to Courts remain
> available to all parties"? "In fact"? "all"?
>
In fact it remains open. In some case it might not, but this is no more
exaggerated thatn saying that in absence of the porposed ADR, parties have
recourse to courts.
> > > May I particularly direct your attention to
> > > http://www.law.miami.edu/~amf/commentary.htm#_1_27 and
> > > paragraphs 121-134 of http://www.law.miami.edu/~amf/critique.htm
> > >
> > > I would also note that I pressed these points in my comments to RFC 3 and
> > > in person in meetings with WIPO in my capacity as a WIPO-appointed
> > > "Expert" but never received a reply. You will certainly search in vain
> > > for a reply in the final report, which artfully says only that the
> > > parties' agreement should impose no bar to judicial review (thus avoiding
> > > the issue of the actual, inevitable, practical consequences of what
> > > happens in the proposed ADR).
> >
> > Sure. As it says nothing about the practical unavailability of court remedies
> > in MOST cases involing domain name disputes. Specially when you face
> > multijurisdictional cases, and the complainant is not in the US... (my
> > experience, take it as you want).
>
> First, more or less half the likely parties are in the US today, so US
> rules are disproportionately important.
>
OK. And the rest of us can go hunting rabbits.... <Review the internet growth
rates, and tell me wht do you think will be the scenario within three years.
> Second, under the WIPO ADR proposal there is in effect near-total in rem
> jurisdiction in Virginia due to the rule that jurisdiction lies where the
> registrar is, and the fact that at present NSI is the dominant registrar.
>
Sure, but I am afraid that the WIPO reprot does not imply retroactivity.
Domains registered so far are out of its scope. Or am I worng.
> Third, I am arguing the US is in no way unique.
>
Agreed.
> In light of this, my point seems rather central to the debate, and not one
> that can be dismissed so easily, or in so conclusory a fashion.
>
And you are not impressed but the fact that your claim has got so little echo,
specially among lawyers? I mean, statistics don't tell the truth. nor define a
good rule., But help soring the problems.
OTOH, even if you and me consider that recourse to courts should remain open,
many others don't. Don't care or don't want, whch amounts to the same. And
frnkly, in practical temrs qnd given the scope of the WIPO Final Report, I am
afraid that many of your concerns were rather cirtical in a wide-ranging ADR
system, but are somehow less central in the currenylt defined narrow set of
rules. So if you you get impressed about stats....
> I agree that there will be cases where judicial review is possible. I am
> not suggesting that this is an empty set. Just that the other case is
> very significant and quite probably dominant at least in the short and
> medium run.
>
> >
> > I mean that I fail to understand that it is a serious concern to you that such
> > "non-technical appeal" (ie, court recourse) would be difficult in certain
> > cases for losing regsitrants (and we have to assume that given the substantialBut if I am correct that the problem in
>
> I assume that a very substantial fraction of the cases where judicial
> review would be appropriate will consist of cases when an unrepresented
> party (pro se) loses. The federal courts (in the US at least) are
> historically friendly to these parties and work hard to tease out their
> case for them. The WIPO ADR process doesn't look likely to work that way,
> since the emphasis is on fast & cheap.
And don't you think that unreprsented losing parties are present courts will
be much more likely to accept review?
>
> > standards proposed, unfarily deprived registratns will be much less than
> > 100%...) while you seem to give little wieght to the same situation regarding
>
> I agree it's likely to be less than 100% :>. But note that if the
> challenger is the victim, they always are no worse off than without the
> ADR, but the same is not true of the registrant.
>
I could agree here (even if with nuances) But once again, don't get ourselves
discussing in vacuum. This is more acceptable in the currenlyt-defined narrow
set of anticybersquatting rules than in a more genral-embracing ADR. Could you
agree on that?
> > challengers. With the ciurcumstance that in your case we are talking
> > about a losing party in an adversorial proceeding (as imperfect as you might
> > want) while in the other case there is NO alternative.
> >
>
> I'm sorry, what's the "other case"? They go to court in the first
> place?--that's an adversorial proceeding too. Or did I miss your point?
My point is that most challengers don't have "pracrtical" access to courts in
these cases. Specially if the registrant is in a differnet country.
> (If your point is that there are disfunctional court systems where no
> judicial challenge is possible, this is obviated by the provision creating
> jurisdiction at the place of registration: currently Virginia, USA in
> most cases. Note also that the complainant is not required to subject
> itself to suit anywhere by virtue of bringing the ADR -- so the
> complaint gets all the benefits of the proposal, and the registrant
> nothing.).
Are you suggesting that the only thing we should do is subjecting everyone to
Birginia jurisdiction? Have you heard about registrars palced elsewhere in the
world? Do you implythat "forum submission" is enough and we should simply
forgot about ADR? If this is your point, please sy it now and we all will
spare lots of time.-
>
> As I have said many times, although the proposal to effectively cut out
> judicial review for losing registrants but not in any way to cut it out
> for losing challengers is one-sided and unfair, I can live with it (in
> part because I hope and trust unfairness will be relatively rare if the
> arbitrators are fair) for the current narrow proposal, if and only if
> other objectionable features are modified. I think it's only fair to
> say that this is an enormous concession to potential injustice, and that
> it benefits TM holders solely at the disadvantage of non-Tm holders.
> Increase the scope as many have proposed to areas in which the courts are
> still evolving the applicable law, and it's past what I think is fair even
> in a spirit of compromise.
>
> > >
> > > PS. I think Randy Bush's moderate position is one shared by many people
> > > -- I would not in any way characterize it as "troublemaking"; also, the
> > > idea of competition between legal systems has been a very familiar one
> > > among legal scholars for over a generation, and has spawned an enormous
> > > literature. I can provide citations in the unlikely event you care (much
> > > of it consumed with debates between those who think there is a "race to
> > > the bottom" vs. those who find a "struggle to the top").
> >
> > Would you be surpised if i told you that I have read a fair part oif it? This
> > a common debate alos in Europe, most espcially in the area of EU-sponsored
> > "liberalisation" (de-regulation).
>
> > In any case, my point was rather marginal and aaddrssing a coment form Randy
> > pointing out that ·dvierse solutions· thru courts and legal orders were not a
> > bad thing (OK, I oversimplify).
> >
> > What I really dislike about US acadmics is that they often sound so arrogant ;-)))
> >
> > Jokes aside, Randy's points are not "troublemaking". Behaviors might be; ideas
> > nev er. And as to the question if they are the shared position of many , lots
> > of few people is a factual question we won't discuss now.
> >
> > Best regards,
> >
> > Amadeu
> >
> >
> > PS: I hope that you recognize your concerns in the report I have just sent tp
> > GA and other DNSO lists. If not, pleae let me know.
> >
>
> Since you are kind enough to ask, I guess I should say that I had some
> differences with the way this was presented in your summary of question b.
> I have prefaced your text with a } and added some comments:
>
> }In fact recourse to Courts remain available to all parties. This is still
>
> My point of course is that this is not a "fact" in any practical sense. In
> a very important fraction -- most likely a majority -- only a losing
> complainant has recourse; a losing registrant doesn't. So everyone should
> stop saying everyone has access to courts when in fact they do not as it
> creates a false sense of complacency and even-handedness. Once it is
> understood that the ADR is the last stop in a very substantial fraction of
> cases, minds will be concentrated on the problem of ensuring procedural
> fairness in the ADR. Something which, by the way, is currently absent
> (e.g. the notice period).
>
> }an added reason for escaping forum shopping and choice of laws
>
> It is my understanding that this ADR, like all others, does not
> change the issue of applicable choice of law. If you feel differently,
> could you please explain why? The panel will still have to decide on and
> examine the relevant law to see whether the DN holder has " no rights or
> legitimate interests in respect of the domain name". How could this issue
> be determined without reference to a legal system?
>
> }hell-scenarios in building the "alternative".
>
> }It has been noted by a former member of the WIPO Panel of Experts that
> }the recourse to Courts after an Alternative Dispute Resolution decision
> }could be limited or not available in many instances. This arguments
> }tells nothing to those favoring a uniform DRP per se, and has failed so
>
> What do you mean "tells nothing"? And is this a fair presentation of my
> view? My view is quite contrary: it tells us a great deal.
I say Tels nothing to those favouring a DRP per se, ie, not caring what kind
of recourse to courts or not the parite have,. And perhaps you have noticed
that there are lots of them.
>
> (1) It tells us the ADR is biased towards the complainant who always gets
> two bites at the apple and against the registrant who frequently only gets
> one and thus calls into question the fundamental fairness of the edifice;
> and
>
> (2) it tells us how important it is to ensure procedural and substantive
> fairness in the ADR because, contrary to the oft-chanted and substantive
> false--yes false--mantra chanted by ADR supporters it is not the case that
> "In fact recourse to Courts remain available to all parties" in any
> meaningful sense. It is not a "fact". It is--I repeat--"false". As in
> "contrary to fact." It pains me to have to harp on this, but I have yet
> to see a legal analysis that challenges the substance of what I have said.
> Without that, I cannot see how a person can say, "In fact recourse to
> Courts remain available to all parties". Try "some". Or, "almost all
> losing complainants and the minority of losing registrants who have the
> good fortune to be able to bring suit in a jurisdiction that will hear
> their complaint."
>
> }far to convince all those wanting to keep open the recourse to Courts,
> }but it deserves further consideration, and our sub-group will pay
> }attention to this issue
>
> Perhaps this is the essence of our mis-understanding: my point is not
> uniquely directed at the issue of "uniform" policies, although it is
> relevant to it. It also goes critically to the issue of the scope of
> those policies (they don't scale; the greater the substantive
> jurisdiction, the more certain and frequent the unfairness). And, most
> important in the short run, it underlines the importance of building in
> protections for unrepresented parties, most notably reasonable time limits
> based on actual notice, and strong generic protections for expressive
> activities.
>
> A good starting point for redressing the balance would be to consider the
> terms of a contract that the complainant should sign as a condition of
> commencing the proceedings.
>
> As a starter, the complainant could be asked to consent to jurisdiction
> for an appeal in the various places. This, though, doesn't get to the
> main point - how to manufacture a cause of action for a losing DN
> registrant. In the US this is not easy, since the courts take a
> dim view of the practice of collusive attempts to create triable issues.
>
Sorry, time out. Will come gback and try to answer the remaining points, but
there are too many still to discuss.
Best regards, and my apologies.
Amadeu
> --
> A. Michael Froomkin | Professor of Law | froomkin@law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
> --> It's hot here. <--
Forwarded with permission
---------- Forwarded message ----------
Date: Sun, 11 Jul 1999 21:46:03 +0200
From: Amadeu Abril i Abril <Amadeu@nominalia.com>
To: Michael Froomkin - U.Miami School of Law <froomkin@law.miami.edu>
Cc: Randy Bush <randy@psg.com>
Subject: Re: [question b] Access to courts
Michael Froomkin - U.Miami School of Law wrote:
>
> [Since yours was a private message, I have not forwarded this response
> which quotes your original.
>
> I would be very grateful if you would consider forwarding this dialog at
> least to the working group, the relevant listserv archive, and perhaps
> more broadly as you see fit. I wonder if you would also consider giving
> your permission for me to forward it to others as well.]
Michael, I will forward your prvious mail, and this one if you want so. As for
my answer, well, it was not in fact so, but just a "receipt"· of yourcoments,
and a ratehr expeditive reaction to some of your points. The important mesg
there was "got it, as it was long time ago; and will put it in the report".
If you want to forward the whole thing, I have nothing agaisnt.
>
> On Sun, 11 Jul 1999, Amadeu Abril i Abril wrote:
>
> I appreciate this dialog. I hope it will continue.
Sure. As you would remember form Rio de Janeiro (apparently to your surprise;
and this was a surprise to me ;-)) we disagree in far less issues than you
might expect. But I will not be able to answer in detail until next Wed I am
afraid ( I scrolled thru your mail and it seems long and dense). I am flying
thalf fo the time, andhave to prepare a ragehr urgnet and complicate legal doc
for tomorrow morning.... So please be patient.
>
> > Michael Froomkin - U.Miami School of Law wrote:
> >
> > Well, saying that this is the truth is perhaps a bit exagerated. I am also a
> > lawyer, and my take is rather differnt than yours. Even radically. But it is
>
> Perhaps you could explain why you think it's exaggerated? I am sincerely
> curious. And no one has ever explained to me how I am exaggerating.
> Recall I'm not saying judicial review is "never" available -- that would
> be silly. I am saying it "often" will be unavailable to the losing
> registrant, probably in a majority of the cases, yet will always be
> available to the losing challenger.
>
* Your inmplication that aritration forecloses judicial review is correct, but
what is proposed would not be deemed as arbitration in most juriscd ition I know.
* In many cases the unavailability of judicial recourse is "prior" to the
WIPO-proposd ADR. It is a fact of lack of availability of relevant forum,
clearly identified.
This is why I emant that this was a bit of an exaggeration. Unavailability is
not that much aggravated by the WIPO proposal, in my view.
> I understand there is an issue as to whether a WIPO ADR would be an
> "arbitration" under the laws of many civil jurisdictions (and even
> England, on some accounts). What I do not understand, however, is where
> this gets you (other than adding cost and complexity to the challenge...)
> since once the ADR is over, if the registrant loses, the complainant has
> the DN, and the registrant has no claim for breach of contract (indeed
> there's no contract between the disputants! maybe there should be!) or
> breach of a statutory duty. What does the losing original registrant
> allege as the basis for judicial review? I would have thought that in
> many civil law jurisdictions the losing-registrant-turned-complainant was
> considerably *worse* off in situation where the ADR is not an
> "arbitration" than where it is. Of course, I am not a civil lawyer, and I
> imagine you are--so perhaps you could sketch out the nature of the claim
> pursued by the original registrant (assuming no fraud, just alleged error,
> on the part of the arbitrators)? Also, will it make a difference whether
> the action is commenced within 7 days (before transfer) or not?
>
> In England, to return to the common law world, if the courts were to
> characterize the ADR as a "non-arbitration" then my surmise (based on 3
> years working there with UK lawyers, but not on deep knowledge) is that
> the position would be pretty much like in the US. I do recognize that the
> English courts treat certain classes of ADR's as appealable
> non-arbitrations, but in every such case of which I am aware, the reason
> for this is that the body rendering the judgment is a quasi-official body
> which essentially falls under English administrative law. It is very hard
> for me to imagine that the WIPO ADR could ever have this treatment.
>
> > perhaps a qeustion of different legal traditions, and the characterization of
> > what is arbitration and what is not.
> >
>
> I have discussed the matter with a swiss friend who is a leading
> arbitration lawyer, and his take, admittedly off the cuff, was that a
> WIPO ADR would not be reviewable in Switzerland in the majority of cases.
>
> > >
> > > The reasons for this are legal-technical, and I explain them in some
> > > detail in my two WIPO reports at http://www.law.miami.edu/~amf
> >
> > I know.
> > >
>
> Then how can you write, repeatedly, "In fact recourse to Courts remain
> available to all parties"? "In fact"? "all"?
>
In fact it remains open. In some case it might not, but this is no more
exaggerated thatn saying that in absence of the porposed ADR, parties have
recourse to courts.
> > > May I particularly direct your attention to
> > > http://www.law.miami.edu/~amf/commentary.htm#_1_27 and
> > > paragraphs 121-134 of http://www.law.miami.edu/~amf/critique.htm
> > >
> > > I would also note that I pressed these points in my comments to RFC 3 and
> > > in person in meetings with WIPO in my capacity as a WIPO-appointed
> > > "Expert" but never received a reply. You will certainly search in vain
> > > for a reply in the final report, which artfully says only that the
> > > parties' agreement should impose no bar to judicial review (thus avoiding
> > > the issue of the actual, inevitable, practical consequences of what
> > > happens in the proposed ADR).
> >
> > Sure. As it says nothing about the practical unavailability of court remedies
> > in MOST cases involing domain name disputes. Specially when you face
> > multijurisdictional cases, and the complainant is not in the US... (my
> > experience, take it as you want).
>
> First, more or less half the likely parties are in the US today, so US
> rules are disproportionately important.
>
OK. And the rest of us can go hunting rabbits.... <Review the internet growth
rates, and tell me wht do you think will be the scenario within three years.
> Second, under the WIPO ADR proposal there is in effect near-total in rem
> jurisdiction in Virginia due to the rule that jurisdiction lies where the
> registrar is, and the fact that at present NSI is the dominant registrar.
>
Sure, but I am afraid that the WIPO reprot does not imply retroactivity.
Domains registered so far are out of its scope. Or am I worng.
> Third, I am arguing the US is in no way unique.
>
Agreed.
> In light of this, my point seems rather central to the debate, and not one
> that can be dismissed so easily, or in so conclusory a fashion.
>
And you are not impressed but the fact that your claim has got so little echo,
specially among lawyers? I mean, statistics don't tell the truth. nor define a
good rule., But help soring the problems.
OTOH, even if you and me consider that recourse to courts should remain open,
many others don't. Don't care or don't want, whch amounts to the same. And
frnkly, in practical temrs qnd given the scope of the WIPO Final Report, I am
afraid that many of your concerns were rather cirtical in a wide-ranging ADR
system, but are somehow less central in the currenylt defined narrow set of
rules. So if you you get impressed about stats....
> I agree that there will be cases where judicial review is possible. I am
> not suggesting that this is an empty set. Just that the other case is
> very significant and quite probably dominant at least in the short and
> medium run.
>
> >
> > I mean that I fail to understand that it is a serious concern to you that such
> > "non-technical appeal" (ie, court recourse) would be difficult in certain
> > cases for losing regsitrants (and we have to assume that given the substantialBut if I am correct that the problem in
>
> I assume that a very substantial fraction of the cases where judicial
> review would be appropriate will consist of cases when an unrepresented
> party (pro se) loses. The federal courts (in the US at least) are
> historically friendly to these parties and work hard to tease out their
> case for them. The WIPO ADR process doesn't look likely to work that way,
> since the emphasis is on fast & cheap.
And don't you think that unreprsented losing parties are present courts will
be much more likely to accept review?
>
> > standards proposed, unfarily deprived registratns will be much less than
> > 100%...) while you seem to give little wieght to the same situation regarding
>
> I agree it's likely to be less than 100% :>. But note that if the
> challenger is the victim, they always are no worse off than without the
> ADR, but the same is not true of the registrant.
>
I could agree here (even if with nuances) But once again, don't get ourselves
discussing in vacuum. This is more acceptable in the currenlyt-defined narrow
set of anticybersquatting rules than in a more genral-embracing ADR. Could you
agree on that?
> > challengers. With the ciurcumstance that in your case we are talking
> > about a losing party in an adversorial proceeding (as imperfect as you might
> > want) while in the other case there is NO alternative.
> >
>
> I'm sorry, what's the "other case"? They go to court in the first
> place?--that's an adversorial proceeding too. Or did I miss your point?
My point is that most challengers don't have "pracrtical" access to courts in
these cases. Specially if the registrant is in a differnet country.
> (If your point is that there are disfunctional court systems where no
> judicial challenge is possible, this is obviated by the provision creating
> jurisdiction at the place of registration: currently Virginia, USA in
> most cases. Note also that the complainant is not required to subject
> itself to suit anywhere by virtue of bringing the ADR -- so the
> complaint gets all the benefits of the proposal, and the registrant
> nothing.).
Are you suggesting that the only thing we should do is subjecting everyone to
Birginia jurisdiction? Have you heard about registrars palced elsewhere in the
world? Do you implythat "forum submission" is enough and we should simply
forgot about ADR? If this is your point, please sy it now and we all will
spare lots of time.-
>
> As I have said many times, although the proposal to effectively cut out
> judicial review for losing registrants but not in any way to cut it out
> for losing challengers is one-sided and unfair, I can live with it (in
> part because I hope and trust unfairness will be relatively rare if the
> arbitrators are fair) for the current narrow proposal, if and only if
> other objectionable features are modified. I think it's only fair to
> say that this is an enormous concession to potential injustice, and that
> it benefits TM holders solely at the disadvantage of non-Tm holders.
> Increase the scope as many have proposed to areas in which the courts are
> still evolving the applicable law, and it's past what I think is fair even
> in a spirit of compromise.
>
> > >
> > > PS. I think Randy Bush's moderate position is one shared by many people
> > > -- I would not in any way characterize it as "troublemaking"; also, the
> > > idea of competition between legal systems has been a very familiar one
> > > among legal scholars for over a generation, and has spawned an enormous
> > > literature. I can provide citations in the unlikely event you care (much
> > > of it consumed with debates between those who think there is a "race to
> > > the bottom" vs. those who find a "struggle to the top").
> >
> > Would you be surpised if i told you that I have read a fair part oif it? This
> > a common debate alos in Europe, most espcially in the area of EU-sponsored
> > "liberalisation" (de-regulation).
>
> > In any case, my point was rather marginal and aaddrssing a coment form Randy
> > pointing out that ·dvierse solutions· thru courts and legal orders were not a
> > bad thing (OK, I oversimplify).
> >
> > What I really dislike about US acadmics is that they often sound so arrogant ;-)))
> >
> > Jokes aside, Randy's points are not "troublemaking". Behaviors might be; ideas
> > nev er. And as to the question if they are the shared position of many , lots
> > of few people is a factual question we won't discuss now.
> >
> > Best regards,
> >
> > Amadeu
> >
> >
> > PS: I hope that you recognize your concerns in the report I have just sent tp
> > GA and other DNSO lists. If not, pleae let me know.
> >
>
> Since you are kind enough to ask, I guess I should say that I had some
> differences with the way this was presented in your summary of question b.
> I have prefaced your text with a } and added some comments:
>
> }In fact recourse to Courts remain available to all parties. This is still
>
> My point of course is that this is not a "fact" in any practical sense. In
> a very important fraction -- most likely a majority -- only a losing
> complainant has recourse; a losing registrant doesn't. So everyone should
> stop saying everyone has access to courts when in fact they do not as it
> creates a false sense of complacency and even-handedness. Once it is
> understood that the ADR is the last stop in a very substantial fraction of
> cases, minds will be concentrated on the problem of ensuring procedural
> fairness in the ADR. Something which, by the way, is currently absent
> (e.g. the notice period).
>
> }an added reason for escaping forum shopping and choice of laws
>
> It is my understanding that this ADR, like all others, does not
> change the issue of applicable choice of law. If you feel differently,
> could you please explain why? The panel will still have to decide on and
> examine the relevant law to see whether the DN holder has " no rights or
> legitimate interests in respect of the domain name". How could this issue
> be determined without reference to a legal system?
>
> }hell-scenarios in building the "alternative".
>
> }It has been noted by a former member of the WIPO Panel of Experts that
> }the recourse to Courts after an Alternative Dispute Resolution decision
> }could be limited or not available in many instances. This arguments
> }tells nothing to those favoring a uniform DRP per se, and has failed so
>
> What do you mean "tells nothing"? And is this a fair presentation of my
> view? My view is quite contrary: it tells us a great deal.
I say Tels nothing to those favouring a DRP per se, ie, not caring what kind
of recourse to courts or not the parite have,. And perhaps you have noticed
that there are lots of them.
>
> (1) It tells us the ADR is biased towards the complainant who always gets
> two bites at the apple and against the registrant who frequently only gets
> one and thus calls into question the fundamental fairness of the edifice;
> and
>
> (2) it tells us how important it is to ensure procedural and substantive
> fairness in the ADR because, contrary to the oft-chanted and substantive
> false--yes false--mantra chanted by ADR supporters it is not the case that
> "In fact recourse to Courts remain available to all parties" in any
> meaningful sense. It is not a "fact". It is--I repeat--"false". As in
> "contrary to fact." It pains me to have to harp on this, but I have yet
> to see a legal analysis that challenges the substance of what I have said.
> Without that, I cannot see how a person can say, "In fact recourse to
> Courts remain available to all parties". Try "some". Or, "almost all
> losing complainants and the minority of losing registrants who have the
> good fortune to be able to bring suit in a jurisdiction that will hear
> their complaint."
>
> }far to convince all those wanting to keep open the recourse to Courts,
> }but it deserves further consideration, and our sub-group will pay
> }attention to this issue
>
> Perhaps this is the essence of our mis-understanding: my point is not
> uniquely directed at the issue of "uniform" policies, although it is
> relevant to it. It also goes critically to the issue of the scope of
> those policies (they don't scale; the greater the substantive
> jurisdiction, the more certain and frequent the unfairness). And, most
> important in the short run, it underlines the importance of building in
> protections for unrepresented parties, most notably reasonable time limits
> based on actual notice, and strong generic protections for expressive
> activities.
>
> A good starting point for redressing the balance would be to consider the
> terms of a contract that the complainant should sign as a condition of
> commencing the proceedings.
>
> As a starter, the complainant could be asked to consent to jurisdiction
> for an appeal in the various places. This, though, doesn't get to the
> main point - how to manufacture a cause of action for a losing DN
> registrant. In the US this is not easy, since the courts take a
> dim view of the practice of collusive attempts to create triable issues.
>
Sorry, time out. Will come gback and try to answer the remaining points, but
there are too many still to discuss.
Best regards, and my apologies.
Amadeu
> --
> A. Michael Froomkin | Professor of Law | froomkin@law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
> --> It's hot here. <--