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

["Chris McElroy" <watch-dog@inreach.com>]

You made some valid points, however in the States right now there are even
employers forcing people to sign to abide by the company's arbitration
process in order to get a job. It is being fought as well. Mandatory
agreements to abide by a particular document that no one representing your
interests had any part in drafting is wrong. Courts have been solving
jurisdictional problems for years. They can do so in these cases.

But I agree, IF the UDRP had been drafted while individuals had some say-so
in the process AND there was an appeals process, there would be no problem
with it.

Chris McElroy aka NameCritic


----- Original Message -----
From: "Bret Busby" <bret@clearsol.iinet.net.au>
To: "Chris McElroy" <watch-dog@inreach.com>
Cc: "Michael Sondow" <msondow@iciiu.org>; <wg-review@dnso.org>
Sent: Wednesday, January 10, 2001 6:53 PM
Subject: Re: [wg-review] [IDNO] OR [IDNH] addendum


> 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
> answer means."
>  - Deep Thought, Chapter 28 of The Hitchhiker's Guide to the Galaxy
>  - Douglas Adams, 1988
> ......................................
> --
> This message was passed to you via the wg-review@dnso.org list.
> Send mail to majordomo@dnso.org to unsubscribe
> ("unsubscribe wg-review" in the body of the message).
> Archives at http://www.dnso.org/archives.html
>

--
This message was passed to you via the wg-review@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe wg-review" in the body of the message).
Archives at http://www.dnso.org/archives.html