Business Constituency comment on recognizing new UDRP providers

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

Business Constituency (BC) Comment on ICANN Proposal
to Recognize New Domain Name Dispute Provider

*Background* 
There is a pending request for comment regarding the application of the Arab
Center for Domain Name Dispute Resolution (ACDR) to become a certified
Uniform Dispute Resolution Procedure (UDRP) arbitration provider.
 
*Summary* 
The Business Constituency (BC) cannot support approval of this or any other
UDRP accreditation application at this time on the grounds that no new UDRP
providers should be accredited until ICANN implements a standard mechanism
for establishing uniform rules and procedures and flexible means of
delineating and enforcing arbitration provider responsibilities.

*Explanation* 
The BC notes that the voluntary registration or renewal of a gTLD domain
must be undertaken via an ICANN-accredited registrar. All registrars are
subject to a uniform contractual agreement with ICANN, the Registrar
Accreditation Agreement (RAA). ICANN recently strengthened the RAA with
additional amendments and the addition of flexible enforcement options, and
a Final Report proposing additional RAA amendments has just been delivered
to the GNSO for its consideration.
 
In stark contrast, the involuntary termination or transfer of a domain can
be ordered under the authority of a UDRP provider that has been accredited
by ICANN but which is not bound by any constraints on or requirements
pertaining to the exercise of that delegated authority.  This has led to
increasing concerns about the lack of adequate procedural and substantive
consistency in the UDRP process. Such concerns are likely to grow if
additional providers are accredited in the absence of the uniform framework
of a standard mechanism.
 
The BC strongly advocates that ICANN must first implement a standard
mechanism with any and all UDRP arbitration providers that defines and
constrains their authority and powers, and establishes regular and
standardized review by ICANN with flexible and effective means of
enforcement. The ultimate sanction of cancelling accreditation is an extreme
sanction that ICANN has demonstrated a reluctance to initiate in other
contexts. 
 
ICANN appears to be transitioning from an environment in which the vast
majority of UDRP cases (approximately 98%) were handled by two arbitration
providers (WIPO and NAF) and in which significant gTLDs were based in a
limited number of national jurisdictions to one in which the majority of
gTLDs and UDRP providers may well be headquartered in a widely distributed
group of jurisdictions.

In the future, business interests may well be investing substantial amounts
in these new gTLDs, for both defensive,  new branding, and other purposes.
In this type of environment it is even more important that  all  UDRP
providers be subject to uniform and enforceable responsibilities, as that is
the only means of furthering the goal that UDRP decisions are consistent
within and among UDRP providers, and that the UDRP remains an expedited and
lower cost remediation for addressing cybersquatting.
 
The BC notes that the issue of whether UDRP providers should be under a
standard mechanism with ICANN is almost entirely separable from the question
of whether the UDRP evaluation standards for determining the existence of
cybersquatting should be reformed.  There is no need to debate the
substantive elements of the UDRP in order to address the fundamental issue
of whether UDRP providers should be under a standard mechanism.

*** 

The rapporteur for these comments was Phil Corwin.

ICANN Business Constituency
http://www.bizconst.org