A Critique of Online Dispute Resolution : Case Study of Uniform Domain Name Dispute Resolution...

A Critique of Online Dispute Resolution : Case Study of

Uniform Domain Name Dispute Resolution Policy (UDRP)

Downloaded from www.careergyaan.org

Critique

noun.

a detailed analysis and assessment


ODR and Cyber World

• Cyber world is not a Xerox version of the geographical world.

• Physical laws have limitations in the sense that they are uni-dimensional in application. They are meant for the physical world, which is static, defined and incremental, whereas cyberspace is dynamic, undefined and exponential. It needs dynamic laws, keeping pace with the technological advancement.


ODR …..Going Digital

• A digitized way of Conflict Resolution

• The most common example: solving consumer problems via email


Conflict Resolution

• Where Law and Management meets…….we have ADR

• Where Law, Management and Technology meets……..we have ODR


Resolving Disputes the ICANN Way • Although Uniform Domain Name Dispute Resolution

Policy (UDRP) of ICANN policy provides that most domain-name disputes will be resolved by the courts, it also calls for administrative dispute-resolution proceedings to enable streamlined, economical resolution of disputes arising from alleged “abusive registrations”.

• Under the policy, each administrative proceeding will be administered by a dispute-resolution service provider approved by ICANN.


……Dispute Resolution Service Providers are

• World Intellectual Property Organization (WIPO)

• The National Arbitration Forum (NAF)

• CPR Institute for Dispute Resolution

• Asian Domain Name Dispute Resolution Centre (ADNDRC)


Advantage ICANN

• Since December, 1999, resolved over 4000 disputes involving more than 7000 domain names.

• With its global accessibility, fast turnaround, simplified procedures and inexpensive fees, the UDRP has been touted as a shining example of the potential of online alternative dispute resolution.

• UDRP is an important model for Dispute Resolution in other e-Commerce areas.


Disadvantage ICANN

• Failed to check cybersquatting

• promotes forum shopping and is systemically biased in favor of trademark holders, who are invariably the complainants in domain name disputes.


It is……Competition

The competition among dispute resolution service providers to be perceived as being most “complainant-friendly” in order to capture all, or a disproportionate share, of the market.


Forum Shopping…..Complainant

Friendly• The two ICANN-accredited providers with

the most favorable outcomes for complainants has been (WIPO and the NAF).

• Complainants win 82.2% of the time with the WIPO, 82.9% of the time with the NAF, but only 63.4% of the time with eResolution. Since outcome is what matters most to complainants, they have rewarded WIPO and the NAF with an overwhelming share of the UDRP caseload.


Who’s Who of Panelists Roster

• WIPO’s roster characterized primarily as being comprised of a global group of trademark attorneys and law professors while NAF’s roster was described as of retired U.S. judges and eResolution’s roster was perceived as of international law professors.

• Although in the recent past they have widened their choices.


Panelist Allocation

• Little is known about how providers determine precisely which panelists serve on what cases. Panelist allocation has become particularly important as the providers’ panelist rosters have converged.

• A growing number of panelists are cross-listed – that is, they are featured on the roster of more than one provider.


Influencing Panel Composition

• Influence over panel composition is likely the most important controlling factor in determining case outcomes.

Contd.


Influencing Panel Composition

• The data shows that when providers control who decides a case – which they do for all single panel cases --complainants win just over 83 percent of the time.

• When provider influence over panelists diminishes – which occurs in three-member panel cases since in these cases both the complainant and respondent choose one of the panelists as well as exercise some influence over the choice of the third member of the panel -- the complainant winning percentage drops to 60 percent.


Deciding …..Who Decides?

• Despite claims of impartial random case allocation as well as a large roster of 131 panelists, the majority of NAF single panel cases are actually assigned to little more than a handful of panelists.

• As of July 7, 2001, an astonishing 53% of all NAF single panel cases – 512 of 966 – were decided by only six people.

• The complainant winning percentage in those cases was an astounding 94%.


ICANN…..A Highly Successful Business Model

• Step 1: Framing of the Rule of “First come and First served basis” for allocation of gTLDs

• Result: ‘Cybersquatting’.

• Solution: Go to ICANN’s approved ‘Dispute Resolution Service Provider’ and resolve issue under UDRP.

Contd.Downloaded from

www.careergyaan.org

ICANN…..A Highly Successful Business Model

• Step 2: Introduce second level domain names

• Result: Second round of ‘Cybersquatting’

• Solution: Go to ICANN’s approved ‘Dispute Resolution Service Provider’ and resolve issue under STOP (Start-up Trademark Opposition Policy)


Moral of the Story…..

• Accept the limitations of ICANN’s Dispute Resolution Service Providers

• Adopt multi-member panel for ODRs• Accredit panelists rather than providers• Respondent selection of provider• The establishment of caseload minimums

and maximums • Let us have an equitable and just

deliverable model rather than a pure business model


The life of the law has not been logic; it has been

experience. Oliver Wendell Holmes, Jr.


Thank You


A Critique of Online Dispute Resolution : Case Study of Uniform Domain Name Dispute Resolution...

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