Re: [wg-review] [IDNO] OR [IDNH] addendum

[Bret Busby <bret@clearsol.iinet.net.au>]

Chris McElroy wrote:
> 
> I don't believe in "required" arbitration in any form. They currently have
> it fixed so you cannot do business on the Internet unless you agree to the
> UDRP as it is written. That is signing an agreement "under duress". Without
> a Domain Name, I can't do business. Without agreeing to the UDRP I can't
> have a Domain Name. I should not have to agree to do that in order to start
> a web-based business. It should be chosse how you prefer disputes be
> settled. Court of Law or WIPO. The only reason it is mandatory is people
> would choose a Court of Law most of the time and that would not allow WIPO
> to insert it's own definition of TM Law which doesn't reflect actual TM Law
> at all.
> 
> Chris McElroy aka NameCritic
> 

Perhaps, the problem is notsomuch the requirement to accept the process,
as the process itself?

A defined international body, devoid of geographicaljurisdictional
constraints, to me, appears more appropriate, than using a court of law,
unless the court of law is a predefined international court, with solely
international jurisdiction. The only such court, of which I am aware,
is, I believe, in Holland, at the Hague. (not sure of exact location,
or, of country of location)

If courts of law are to be used, which courts would have jurisdiction?
In Australia, federal and state based courts exist, and, demarcation
problems exist between those jurisdictions. Then, within each of those
jurisdictions, are the civil courts, and the police/criminal courts. So,
would it be a civil court? If so, then, which level of civil court? At a
state level, in West Australia, the lowest, is the Small Claims
Tribunal, the next is the Local Court, followed by the District Court,
and, then, the state supreme court. Which would have jurisdiction, and,
would the normal appellate procedures that apply to each court, apply to
a resolution process, determined in that court? And, if the federal
jurisdiction applies, the federal government has recently decided to
institute federal magistrates, in addition to the Federal Court, and the
High Court. Again, which would have jurisdiction, and, would normal
appellate processes, that apply to each court level, apply, when
determining disputes of this nature? And, in the case of countries that
are memnbers of the British Empire (yes, it is still an empire), who
have not changed their laws to remove appeal to the British courts, such
as the Privy Council, the House of Lords, etc, would appeal against
domain name disputes, lie, to those courts? Would that then mean, that,
depending on the country, up to seven or eight, levels of appeal would
exist, allowing a dispute to take about 10-20 years, before a final,
absolute, decision? And, then, as in the courts now, the one with the
most money, wins.The processses that apply, could be country specific,
so that, if a complainant resides in one country, and, the respondent
resides in another country, which procedures shall apply; the procedures
and jurisdictions, of the complainant's country, or, of the respondent's
country? How would it be ensured that the process is fair to all
involved parties? And, this just applies to the particular aspects, of
jurisdictions, and, appellate procedures. Then, what about applicable
laws and procedures? Who shall determine what particular laws apply,
and, such things, as the acceptable means of service of documents, etc?
As an example, the High Court in Australia has ruled that any
international agreements and treaties, that are signed and ratified by
the Australian federal government, are not binding in law. So, the
Australian federal government could agree to  a court based dispute
resolution procedure being adopted in Australia, it works for a while,
and then, some filthy rich person gets a decision that they don't like,
and, appeals it to the High Court (only filthy rich people can access
the High Court in Australia), and, the High Court says, "Stuff this, we
have already ruled that whatever the government does internationally, is
not binding in Australia", and, suddenly, Australia finds itself outside
the dispute resolution process.

It gets confusinger, and, confusinger.

I suggest that the practice, of imposing a standard, UDRP, is
appropriate, with accessible, and appointed, tribunals, with the
tribunals being accountable, with standard particular rules and
procedures, governing the tribunals. Perhaps, some form of appeal, may
be appropriate, but, if an appellate process is implemented, then, as
with the initial dispute resolution process, the appellate process must
also be accessible, to the common people.

I think, perhaps, the issue of accessibility, is an important
consideration in this, in addition to the need for accountability, and,
in a way, that does not favour the richest party.

I believe that a UDRP, created and implemented on an international
basis, with no differences in applicability that are dependent on
geographic location, and, that is completely accessible to the common
people, is the solution.

So, Chris, on this matter, I strongly disagree wih you.

-- 

Bret Busby

Armadale, West Australia

......................................
"So once you do know what the question actually is, you'll know what the
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