[wg-review] Arbitration vs appeal

[Jefsey Morfin <jefsey@wanadoo.fr>]

Any person having signed one or two international contracts in his life
knows that arbitration is a favored way to avoid courts. Courts are  the
regular escalation in case of disagreement over the arbitration results.
Courts then take into consideration the arbistration result and reasons
for disagreement.

Asking for an arbitration as an appeal of an arbitration is either absurd
or total lack of knowledge of international business rules.

TLDs may add their own constraints when taking advantage from the
UDRP as part of their "Internet mnemonic delivery terms" (a more
general and accurate phrasing than the "domain name registration
conditions" which covers 99% of the current transactions, but
conceptually only a small part of the DNS possible utilization).

The additions I personaly advise are:

1. the plaintif must provide a definition for the missing domain
     name definition, so we are sure the two parties talks about the
     same thing.

2. the hearing must bu "public": all the pieces must be published
     and anyone must be able to follow the case by e-mail and to
     freely advise both parties/

3. the panel must be accepted by the TLD and by the defendant.
     I strongly object to the iCANN, TLD and WIPO being any part
     on the "judging party", since they are part in the process and
     may have to testify

4. In case of specialized TLDs, the plaintif will have first to obtain
     a decision of the TLD about the recevability of its own registration
     and will have to present the resul as part of his file. This will
     permit the panlist to know if can order a transfer or a closing.

Jefsey





On 00:19 11/02/01, Dassa said:
>|>-----Original Message-----
>|>From: On Behalf Of Cade,Marilyn S - LGA
>|>Sent: Sunday, February 11, 2001 10:49 AM
>|>Subject: RE: [wg-review] [DNDEF] short quizz 9,10
>|>
>|>
>|>If you look hard at the list of the companies who have used
>|>the UDRP, you will see that most of the names submitted (I am saying ,
>|>most, not all) are pretty egregious misuses or infringements.   When 
>those cases
>|>are taken to court instead of UDRP, they almost always turn out to be more
>|>expensive for both sides and I would project that the outcomes would be
>|>largely the same.
>|>
>|>
>|>But, let's be realistic. "Rules" like law gets applied with
>|>interpretation, don't they? Even courts sometimes find differently, 
>which is
>|>why there is an appeals process.  And there is an appeals process with the
>|>UDRP. The loser can always take the issue to their national court, or 
>the court of
>|>jurisdiction.
>|>
>|>Why isn't that a reasonable approach?
>
>The UDRP doesn't have an appeals process.  Taking a disputed resolution 
>into the jurisdiction of a court is taking it outside of the UDRP 
>process.  Any resolution process should have a method of appeal to not do 
>so makes such systems liable to complaints such as we see now in the 
>UDRP.  The appeal process would allow for more consistent resolutions.
>
>Darryl (Dassa) Lynch.
>
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