RE: [wg-review] Arbitration vs appeal

["Joanna Lane" <jo-uk@rcn.com>]

Dassa wrote:-
>A lot of arbitration systems have appeal processes.  Such an appeals
process is in fact an auditing function over the arbitration system, without
having to resort to the Courts.  Under the current system, any of the
parties may take the matter through the legal system at any time.  The whole
point of the URDP is to have a valid arbitration system, without an auditing
system such as an appeals process introduces we will begin to see more
actions taken into the legal arena.

>Appeal systems are in fact not requesting another arbitration.  To state it
as such is being deliberately simplistic and obstructive.

- I fully admit to trying to keep things as simple as possible. It's common
sense to make sure the foundations are stable before adding layers to the
structure. This is not being deliberately obstructive, it's exercising
prudence, which is a good thing.  I am not convinced by your argument, not
least because I have yet to see a practical proposal for who would undertake
the Appeals process in a fair and even handed manner.

>By the URDP instigating an appeals process it has the opportunity to
provide better arbitration services.  The appeals process would look at the
procedure of the arbitration, not the matter under arbitration.  Such an
appeals process would allow those who claim that the correct procedure has
not been followed an avenue to have a clear and precise method of
registering their complaints.<

- I would not disagree with this, but again, who would handle it?

 >It would also allow for a careful look at decisions that are not
consistent across the arbitrators.<
I don't follow.... you have just argued the appeals process would NOT look
at the matter under arbitration!!!


>The courts would only deal with any decision and would not allow for an
auditing of the URDP processes.  As such, it seems to me that it is a waste
of time to deal with the URDP at all and the current system is encouraging
participants to resort to legal resolutions.>

- That depends on the amount of money you have to throw at it. If you were
to say that the appeals process would allow those with limited funds a
mechanism to ensure UDRP arbitration has been fair, which would otherwise
not be available to them, then I might agree with you.

Regards,
Joanna

Darryl (Dassa) Lynch.

|>-----Original Message-----
|>From: owner-wg-review@dnso.org [mailto:owner-wg-review@dnso.org]On
|>Behalf Of Jefsey Morfin
|>Sent: Sunday, February 11, 2001 11:53 PM
|>To: wg-review@dnso.org
|>Subject: [wg-review] Arbitration vs appeal
|>
|>
|>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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|>
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|>

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