UDRP Arbitration Decisions Overridden: How Sallen Undermines the System

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Implementing an Online Dispute Resolution Scheme: Using Domain Name Registration Contracts to Create a Workable Framework

Online businesses have grown tremendously in the past decade. As a larger percentage of the U.S. economy moves onto the Internet, a larger percentage of people doing business online will find themselves disagreeing with each other. How those disputes are resolved presents an ongoing challenge in a world where traditional ordering mechanisms, like geographical boundaries, become increasingly antiquated. As contracts are formed across state and national lines, dispute resolution systems built around spatial locations become ever more unwieldy. The complications and costs of securing a favorable decision from a far-off decisionmaking body make reliance on geographic-based systems exceedingly difficult. Out of this situation, a growing number of alternative dispute resolution ( ADR ) options have emerged. As technology evolves, many of these ADR options include new, electronic dimensions. These so- called online dispute resolution ( ODR ) systems represent a blending of traditional ways of solving conflicts while maintaining the advantages of operating online. By creating problem-solving systems which themselves cross borders, ODR systems represent one of the most promising means of ensuring that problems will be fairly resolved. The rate of adoption of ODR procedures, however, remains relatively slow. Despite the need for such systems, many companies opt to leave the issue to be resolved by customers on a case-by-case basis. As a result, many online customers have little confidence that disputes can be taken to anyone but the company with which the consumer transacted. For some potential customers, the risks of doing business online may remain too great. This Note is intended to advance the debate about ODR adoption by suggesting a new approach. While much has been written about what an ODR system should look like, the question of how any such system would be implemented remains problematic. Rather than looking to create new ODR requirements country by country, this Note suggests the creation of a new requirement for all businesses operating online: that they provide an ODR process for their customers which can fairly address the disputes that arise between them. This new obligation would be enforced by the consumers themselves, thus constituting a new weapon for customers to wield against companies that mistreat them. The obligation would take the form of a requirement in the domain name registration contract. Should a company refuse to comply, a disgruntled customer could initiate a proceeding which would result in the deregistration of the company\u27s domain name. Part II opens with a brief description of how the Internet works and how the registration of domain names provides an opportunity to regulate online behavior. It also gives an overview of the present state of both ADR and ODR options for businesses and of the only currently employed mandatory international ODR system. Part III describes some of the chief benefits that could be realized through greater ODR usage, as well as the problems with many of the current options for expanding that usage. Part IV lays out the proposed system and details how it could be implemented, and Part V addresses the potential problems raised by the adhesive nature of the registration contracts being targeted by this system

Market for Private Dispute Resolution Services - An Empirical Re-Assessment of ICANN-UDRP Performance, The

We present a thorough analysis of one of the ADR regimes that is considered a significant success in Internet markets, the Uniform Dispute Resolution Policy (UDRP) implemented by the Internet Corporation for Assigned Names and Numbers (ICANN). In this work, we perform a complete empirical analysis of the UDRP and evaluate its performance. We then extrapolate the results to other sectors of the Internet market and to private dispute resolution in general.[...] In this paper, we thoroughly critique the performance of the UDRP providers and identify the main variables that determine ICANN\u27s efficiency. For example, one of the key variables, and also a main concern of ICANN, is the duration of the procedure to decide these cases. We analyze the decisions of the complainants in deciding to send their claim to a particular dispute resolution provider. Using a multinomial logit regression model to determine if complainants select the provider based on bias or the duration of the procedure, we show that duration is at least as important as bias in selecting providers. This is a key finding because our results show that the emphasis of other theoretical and empirical work that has exclusively concentrated on the effects of bias is misplaced. Consequently, we recommend that more attention should be paid to other performance and efficiency indicators, particularly the indicators proposed in this paper. In our empirical analysis, we used the duration of the cases as the variable to measure the general efficiency of each provider. Additionally, we applied regression models based on the analysis of the system\u27s duration to identify different factors that determine the system\u27s performance. In studying the actual performance of providers, we have found that the UDRP providers have different duration functions. Moreover, because there are different procedures, different review processes, and different technologies used to handle these cases, forum shopping is very likely to exist. This existence of forum shopping based on the performance of the providers is different from forum shopping based on the bias of the provider towards the complainant. These results are supported by: (1) the fact that the two most important domain name dispute resolution providers are located at the extremes of the possible technological structures of the UDRP; and (2) the fact that the providers have an unambiguous bias for specific countries. This finding is important because most of the literature discussing provider bias focuses on bias between particular individuals. In addition, the geographical bias towards the countries of origin of the providers is important when analyzing the design of a general dispute system such as the UDRP. Additionally, the evidence of such bias strongly contradicts ICANN\u27s claim that the system is intended to handle the most diverse claims involving the Internet, regardless of the parties\u27 origins. We also found that some panelists have a completely different duration function in deciding cases than the rest of the cases viewed collectively under any private provider. That said, structural differences among providers can influence the panelists\u27 performance. Interestingly, the fact that some panelists exhibit a different behavior from the rest of the panelists within the same provider could be beneficial and providers should give these panelists more cases to handle. At the same time, panelists consistently favoring one party over another should be evaluated carefully and should perhaps not handle as many cases. This evidence calls into question the overall manner in which providers assign cases to the panelists. In addition, we find that the evidence presented by complainants and respondents affects the performance of the providers. Finally, we evaluate the differences in performance between one and three member panels. We find that three member panels are as efficient as single member panels. Accordingly, changing to a general three member panel system could promote fairness without creating a negative impact on efficiency. The paper is organized as follows. First, we describe the ICANNUDRP system and the providers in charge of the dispute resolution process. Second, we present a regression model to analyze the selection process employed by the complainants in choosing a dispute resolution provider. We also describe the regression technique used for the empirical analysis and the characteristics of the database. Third, we present a general empirical analysis of the UDRP system providers. Fourth, we analyze the regression model and present the results from the model. Fifth, we analyze the results in terms of the policy recommendations derived from these results. Finally, we present our conclusions

Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy

The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by some as the model for a new non-national approach to lawmaking and dispute settlement applicable to a broader set of legal issues that transcend national borders. In this article, we describe the conditions that led to the UDRP\u27s formation and consider whether the UDRP can and should be replicated elsewhere. The process by which the UDRP was created, and the way in which it is structured, departs significantly from preexisting approaches to international lawmaking and dispute settlement. The UDRP is the product not of national legislation nor an international treaty, but rather of a web of contractual obligations imposed by a private, non-profit corporation with a monopoly over a valuable resource. Through its agreements with the U.S. Department of Commerce, ICANN serves as the gatekeeper for anyone seeking to acquire the most commercially valuable internet addresses. Exclusive control of access to the root server enables ICANN to dictate the terms and conditions for domain name ownership. This technological control also facilitates enforcement of UDRP panel decisions compelling domain name registrars to cancel ownership of contested domain names or transfer them from registrants to trademark owners. The UDRP deviates from preexisting lawmaking and dispute settlement paradigms in other ways that make its advantages considerable (and which may make it attractive for replication). For example, the UDRP is a hybrid dispute settlement system. It contains an amalgam of elements from three distinct decision making paradigms - judicial, arbitral and ministerial - and it draws inspiration from international, supranational, and national legal systems. The UDRP thus reveals how dispute settlement structures can be tailored to the needs of new technologies and new types of legal conflicts. The UDRP is also non-national. Neither its substantive content nor its prescriptive force necessarily depends upon the laws, institutions, and enforcement mechanisms of any single nation-state or treaty regime. It thus suggests ways to bypass the often slow and cumbersome mechanisms of national and international lawmaking and to fulfil the demand for effective dispute settlement mechanisms that, like so much current social activity, transcend national borders. Even assuming the UDRP can be applied to other situations where the conditions of monopolistic technological control do not subsist, however, we do not believe that it should be uncritically extended to other contexts without first questioning how non-national systems ought to be structured. In particular, while we applaud the effort to construct a non-national model that draws upon but is not constrained by existing paradigms, the current iteration of that model fails to incorporate appropriate checking mechanisms to control the scope and pace of lawmaking and the limited powers granted to dispute settlement decisionmakers. Moreover, the tensions between national and non-national values may be more difficult to reconcile in other settings; cybersquatting, in contrast, was universally condemned, and thus competing national values were less frequently implicated. We seek to identify these and other variables that should guide the authors of new checking mechanisms for new non-national structures

Reflexive transnational law : the privatisation of civil law and the civilisation of private law

The author examines the emergence of a transnational private law in alternative dispute resolution bodies and private norm formulating agencies from a reflexive law perspective. After introducing the concept of reflexive law he applies the idea of law as a communicative system to the ongoing debate on the existence of a New Law Merchant or lex mercatoria. He then discusses some features of international commercial arbitration (e.g. the lack of transparency) which hinder self-reference (autopoiesis) and thus the production of legal certainty in lex mercatoria as an autonomous legal system. He then contrasts these findings with the Domain Name Dispute Resolution System, which as opposed to Lex Mercatoria was rationally planned and highly formally organised by WIPO and ICANN, and which is allowing for self-reference and thus is designed as an autopoietic legal system, albeit with a very limited scope, i.e. the interference of abusive domain name registrations with trademarks (cybersquatting). From the comparison of both examples the author derives some preliminary ideas regarding a theory of reflexive transnational law, suggesting that the established general trend of privatisation of civil law need to be accompanied by a civilisation of private law, i.e. the constitutionalization of transnational private regimes by embedding them into a procedural constitution of freedom

Domain Name Allocation and Government Super-Prioritization

Governments\u27 growing awareness of the Domain Name System (DNS), the Internet Corporation for Assigned Names and Numbers (ICANN), and its stewardship of DNS policy development fuel recent attempts to steer Internet domain name allocation toward policies that prioritize government interests ahead of all other rights and interests, including trademark rights. As the DNS expands, the top level in its hierarchical structure (the level of domains such as .com and .uk ) assumes the characteristics and attributes, and therefore also the conflicts and challenges, of its second level (the level of public-registered names). This Article argues that these developments necessitate a new, holistic approach to developing name allocation policy in which established Uniform Domain--Name Dispute--Resolution Policy (UDRP) norms are brought to bear in evaluating government claims to name priority beyond the limited scope of the UDRP. Governments\u27 requests for exemptions from trademark protections to super-prioritize their interests in geographic names bear striking resemblance to the claims made and rejected by UDRP panels in challenges to geographic second-level domain registrations by non-government parties. A unified framework of allocating geographic names in the DNS renders such decisions relevant and indeed integral to current and future policy development

Globale Zivilregimes : Lex Mercatoria und Icann UDRP

Global Governance bezeichnet ein produktives Zusammenwirken aller an einer effizienten und legitimen Lösung von grenzüberschreitenden Sachproblemen ernsthaft interessierten Akteure. Es handelt sich weder um Multilateralismus noch um Unilateralismus, sondern um eine Koalition des Weltbürgertums. Auf dem Gebiet des privaten Wirtschaftsrechts gibt es zwei Beispiele für von solchen zivilgesellschaftlichen Koalitionen geschaffene Regimes, anhand derer die Funktionsweise transnationaler Rechtssysteme aufgezeigt werden kann. Dabei handelt es sich einerseits um das Recht der Handelsverträge, wo bereits seit geraumer Zeit die Entstehung einer neuen Lex Mercatoria diskutiert wird (I.). Andererseits bildet die von ICANN errichtete Uniform Dispute Resolution Policy für Domain-Namen ein gutes Beispiel für die Entstehung eines transnationalen Markenrechts im Wege der Co-Regulierung (II.). In beiden Fällen ist unter Juristen umstritten, ob es sich überhaupt um Rechtsphänomene, geschweige denn um (autonome) Rechtssysteme handelt. Wie der Konflikt zwischen Traditionalisten und Transnationalisten in der seit gut vierzig Jahren andauernden Debatte um die Lex Mercatoria zeigt, ist diese Frage auf der strukturellen Normebene nicht zu lösen. Es erscheint deshalb als sinnvoll, sich dem Phänomen transnationaler Zivilregimes zunächst unter Verwendung sozialwissenschaftlicher Kriterien beschreibend zu nähern, bevor in einem dritten Schritt gezeigt wird, wie man die Emergenz transnationaler Zivilregimes im Rahmen einer auf operativer Ebene ansetzenden Theorie des Rechts als autopoietisches Kommunikationssystem auch rechtstheoretisch in den Griff bekommen kann (III.). Die folgenden Ausführungen orientieren sich dabei an den von Zangl und Zürn entwickelten Begriffen der Verrechtlichung und Konstitutionalisierung, weil diese eine Beschreibung anhand der der quantitativen Kategorien des Mehr oder Weniger anstelle des juristischen Alles oder Nichts (Recht/Nicht-Recht) ermöglichen