Re: [question-b] ...and my take at it

[Amadeu Abril i Abril <Amadeu@nominalia.com>]

Amadeu Abril i Abril wrote:
> 
[...]
> 
> I would like proposing to you all (including Randy, veven if we alrady know
> that your positon is a global "no") to answer the follwong detailed questions:
> 

And here come my own answers:

> * 1. Do we need an uniform DRP at all?
> 
> Assumption: we face now a world of non-uniform (differenctiated) dispute
> resolutions mechanisms: worlwide courts and legal systems. If we are to build
> a DRP as an alternative to court litigation, this should be uniform. If not,
> it would be a perfect waste of time and will leave us in the same level of
> conflituality and insatisfaction that has been the comon plac e during the
> last three years.
> 
AAA: I concur with Randy in wishing some degree of "legal system
differenetiation" I beleive that we need some comptetition among legal systems
(even if this might sound strange to many lawyers). But I submit that we
already have this differenetiation: courts and legal systems around the
worlsd. As the propsoed WIPO DRP does "not" preclude recourse to Courts,
registratns, and challegners will always have the choice. But we are trying to
build a working alternative. If the alternative to the current "chocie of
laws" is a new version, increased with facilitated forum shopping, all the
experiment lacks any sense. In sum: if DRP has to exist, it has to be uniform;
if not, we better don't set any such policy(ies).

> * 2. Does a DRP need to be gTLD-based or uniform accross gTLDs?
> 
> Assumtpion: "unfirom" does not imply "universal". Equal thigns should be
> treaten equally,; differnt situations desserve different treatments. At least,
> uniform means unfiorm for each gTLD. At most, it means uniform accross all
> possible gTLDs.
> 
AAA: I beleive that the curretny porposed DRP (limited to genrally agreed
policies against cybersquatting and lkevaing more controversial conflicts
asisde) should apply to all current three gTLDs (.com; .org & .net). The
reason is that, regardless of their initial intended use, their current use is
absolutely identical. But I would think that we should underline that, in case
some differentitated types of gTLDs get into existence (restricted in some
form; non-commercial, personal, etc9 it would be advisable to see whether the
same policy should apply, as it might well happen that they desserve a
different type of DRP.

> * 3. Does a UDP imply just uniform material rules or also procedural ones?
> 
> Assumption: Uniform in itself means not that much. At least, it means having
> the same material, substantial rules (ie: what is cubersquatting; what are the
> possible determinations etc). At  ost, it menas that procedural rules ar 4e
> exaclty the same (terms; fees; rules of procedure etc).
> 
AAA: I absolutelly favour uniform materal rules. As for prcedural ones, I
would also like to have uniform ones (this simplifies everyone's views) but it
is possibly an area where DNSO should recommend some degree of freedom, as the
arguments for uniformity are less compelling.

> * 4. Is a UDP compatible with multiple ADR service providers? Is a single
> ADR-SP a better choice?
> 
> Assumption: Uniform or not, DRP can be administrated by just one DRP-SP (for
> instance: WIPO) or multple DRP-SPs applying the same rules (for instnce: WIPO,
> ICC; UNCITRAL, AAA,-...). Either each registrar/rgistry chooses one possible
> DRP-SP or there is an ICANN-approved list of UDR-SP common to all registration
> authorities. The question then is "cho makes the choice?
> 
AAA: Simplicity would faovur a single DRP-SP. But agian, the argument is short
of compelling. A list of comeptent (and accrdited by ICANN accordng to some
objective criteria) could all serve the same policy. But the choice should not
be baed on the registrar, as this would absolutly harm the chances of
consolidation )ie, bringing all calims agains tthe same registrant together,
as registering domain names among differnet registrars is trivial ,and this
would lead, once more to the mcuhhated forum shopping). Therefore I favour a
single list, with registrants accepting them all and leaving the choice to
challengers. 

If we adopt such rule, then we should think a) whci could be the objective
criteria to accredit DRP-SP and b) whether registrants should beable to opt
out some of them.
 
> * 5. Should a UDP be registry-based or registrar-based?
> 
> Assumption: we can achive similar results by having a single dispute policy
> accrosss all registrars (ie, x number of identical DRPs) or having just one
> single DRP at the TLD level (in principle, at the registry level, but a single
> registry could in principle have two separate policies if they are to run two
> kinds of gTLDs that we might beleive desserve differnet SRPs, even if this is
> not the case today).

AAA: There is only one reason for going the registrr way (even unfiorm
regsitrar way): NSI's refusal to accept anything coming form ICANN. If we
think about all possible legal issues or even the simplest implementation
ones, it is easy to see that a uniform RDP should be TLD-based (and this,
poeprationally, means registry based). I am not suer that we have to
acommodate our vision of the workd to the current strtegical design of a
single company. But, on the other hand, we cannot ignore present reality. In
my opinion we shoudl recomend to ICANN a registry (TLD) based approach, but
express that in the current cirucmstances a uniform accross the registrars DRP
albeit being less-than-perfect, could serve the same goals for some time.

Best regards,

Amadeu