Re: FW: [wg-review] [DNDEF] short quizz 9,10

[Eric Dierker <Eric@HI-TEK.COM>]

This results in a mechanism where power and influence can have a major effect on
outcome.  This situation favors the side which yields the most power and money
and lawyers.  The model of courts which is not perfect relies upon atonomy, these
models are more like hiring out to the highest bidder.

sincerely,

Kent Crispin wrote:

> On Thu, Feb 08, 2001 at 06:38:27PM -0500, Joanna Lane wrote:
> > Kent Crispin wrote:-
> >
> > The changes I think need to be considered are:
> >
> > 1) competition among arbitration service providers must be arranged so
> > that they tend to produce uniform results.  "Forum shopping" should be
> > restricted to issues of price and service, not anticipated results.
> > [But if the trend noted by Mueller continues, and the numver
>
> [Damn, hit the send before I intended.  The above sentence should read
> "But if the trend noted by Mueller continues, and the number of
> disputes continues to drop, this may be moot -- there may not be enough
> disputes to support multiple providers."]
>
> >
> > Please explain. I don't understand how competition among arbitration
> > services will guarantee uniform results.  (This is not a trick
> > question).
>
> I didn't say "guarantee", I said "tend to produce".  If properly
> arranged, competition will tend to reduce variation in providers, just
> as competition in price tends to lower prices.
>
> Right now there is a substantial difference in outcomes from one
> provider to another -- relative to all other providers,
> Disputes.org/eResolution strongly favor defendants.  This is a factor
> that someone who was a defendant might consider very seriously, if
> defendants got to choose provider.  But in the current scheme it is
> plaintiffs that get to select providers, so plaintifs tend to favor
> other providers, especially WIPO.  This is "forum shopping".  There
> have been several schemes proposed to alleviate the problem.  I favor
> one where the defendant and plaintif are required to rank all providers
> in order of preference, and the provider chosen would be the first one
> to appear on both lists -- if there are three providers, A, B, C, and
> plaintiff orders them A, B, C; and defendent orders them C, B, A, then
> provider B would be chosen.  If A or C consistently favored one side or
> another, then they would very seldom be chosen, because they would
> always be last on the other sides list.  A scheme like this gives
> business to the provider who stands out the least, in terms of having
> an obvious bias on any particular issue.
>
> Note that this doesn't mean that the system would evolve to a position
> where half the time the defendant won and the other half of the time the
> plaintiff won -- it might reach a point where, across all providers, the
> plaintiff won 90% of the time.  The plaintiff/defendant win-loss ratio
> is not in any way a measure of the fairness of a system -- a perfect
> justice system would catch every criminal, would never arrest an
> innocent person, and the conviction rate would be 100% (since every
> defendant would in fact be guilty, because the system only got guilty
> parties... )
>
> There are other schemes -- Louis Touton mentioned the simple scheme of
> having the pool of arbitrators be common among all providors, for
> example; Milton Mueller favors a "registrar decides" model, though I
> think that is plainly stupid, since it just moves the forum shopping to
> the registrar level.
>
> > Also, value judgements on service include anticipating results don't they?.
>
> If the system is set up so that providers have economic motivation to
> be objective as possible, then it would be very difficult to use
> results as a means to select provider -- at that point, issues like
> service and price take precedence.
>
> > Or are you suggesting we specify service criteria?
>
> No.
>
> > 2) there needs to be a feedback mechanism that corrects for really bad
> > decisions.
> >
> > Excellent.
>
> But very tricky.  Remember that one of the goals of the UDRP is to
> *not* have it be a substitute for the law, and if you build, for
> example, an elaborate appeals process, you are more and more making it
> into a legal system.
>
> --
> Kent Crispin                               "Be good, and you will be
> kent@songbird.com                           lonesome." -- Mark Twain
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