[bc-gnso] UDRP (and URS) might one day be deemed invalid and unenforceable

[George Kirikos <icann@xxxxxxxx>]

Hi folks,

I was doing some research on NAF bias, and came across an interesting
section of text in their Wikipedia article:

http://en.wikipedia.org/wiki/National_Arbitration_Forum

(I know, I know, Wikipedia isn't always reliable for information)

However, the section on the "Proposed Arbitration Legislation" was
educational. The relevant bill working its way through the government
can be seen at:

http://www.govtrack.us/congress/billtext.xpd?bill=h111-1020

One should read the "Findings" section very carefully, especially as
extremists on the pro-complainant sides of the UDRP (and IRT) try to
tilt things even further against due process. Almost every point can
be seen when one thinks about the UDRP:

e.g.

".....was intended to apply to disputes between commercial entities of
generally similar sophistication and bargaining power."

"a large and rapidly growing number of corporations are requiring
millions of consumers and employees to give up their right to have
disputes resolved by a judge or jury, and instead submit their claims
to binding arbitration."

"Few people realize, or understand the importance of the deliberately
fine print that strips them of rights; and because entire industries
are adopting these clauses, people increasingly have no choice but to
accept them. They must often give up their rights as a condition of
having a job, getting necessary medical care, buying a car, opening a
bank account, getting a credit card, and the like. Often times, they
are not even aware that they have given up their rights."

"Private arbitration companies are sometimes under great pressure to
devise systems that favor the corporate repeat players who decide
whether those companies will receive their lucrative business."

"Mandatory arbitration undermines the development of public law for
civil rights and consumer rights, because there is no meaningful
judicial review of arbitrators’ decisions. With the knowledge that
their rulings will not be seriously examined by a court applying
current law, arbitrators enjoy near complete freedom to ignore the law
and even their own rules."

"Mandatory arbitration is a poor system for protecting civil rights
and consumer rights because it is not transparent. While the American
civil justice system features publicly accountable decision makers who
generally issue written decisions that are widely available to the
public, arbitration offers none of these features."

" Many corporations add to their arbitration clauses unfair provisions
that deliberately tilt the systems against individuals, including
provisions that strip individuals of substantive statutory rights, ban
class actions, and force people to arbitrate their claims hundreds of
miles from their homes. While some courts have been protective of
individuals, too many courts have upheld even egregiously unfair
mandatory arbitration clauses in deference to a supposed Federal
policy favoring arbitration over the constitutional rights of
individuals."

Of course, there are appeals procedures for the UDRP (and URS) so
there's not a 100% match (although there are clearly many parallel
themes we've seen), but the "Findings" above demonstrate that there
needs to be fairness, and lawmakers (and presumably courts) are
sympathetic to cases where rights to due process are being abused. The
more some people try to tilt the UDRP (or IRT) so that it favours
extremists that will abuse it, the more likely it will one day be
deemed invalid and unenforceable. The moderates on both side would be
able to come up with fair rules for clearcut cases of cybersquatting.
But, that can't happen when some folks are trying for "win-lose"
scenarios, instead of "win-win" ones.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/