[bc-gnso] What is ICANN doing to make sure that the UDRP providers are truly neutral?

[George Kirikos <icann@xxxxxxxx>]

Hi folks,

There was a very good article in the Wall Street Journal today
discussing the turmoil in the arbitration world, in particular with
NAF:

http://online.wsj.com/article/SB125548128115183913.html?mod=googlenews_wsj

"Banks "don't need the taint that comes with mandatory arbitration."

"While telling consumers that it was an impartial arbitrator, NAF
worked closely with creditors, the regulator claimed, including
drafting claims against consumers."

"Former arbitrators, a congressional subcommittee, consumers and
government suits are now alleging that NAF has been systematically
ruling against consumers for years."

"A congressional subcommittee, which began an investigation last year
to study the fairness of mandatory arbitration, concluded in July that
the current arbitration system is "ripe for abuse." Arbitration, as
"operated by NAF, does not provide protection for those consumers,"
the committee said."

"Before that case, she had ruled in favor of credit-card companies 18
consecutive times, she told the committee. She says she finished
several pending NAF cases after she ruled for the card holder, but
then wasn't given more cases. The official reason the NAF gave for
canceling more work was scheduling conflicts. But Ms. Bartholet said
in an interview that an NAF manager told her she was likely removed
because she ruled for the debtor."

In light of this, what is ICANN doing to ensure that UDRP is conducted
in a neutral manner? Ideally it should be optional, unless *both*
parties agree to it (i.e. parties should be permitted to choose the
courts, a superior method for complex matters, if they feel it is
appropriate).

We have had NAF openly admit (in their IRT comments) that:

http://forum.icann.org/lists/irt-final-report/msg00178.html

"Panelists have taken the opportunity, over time, to agree with those
complainants and broaden the scope of the UDRP, but it started out as
a mechanism only for clear cut cases of cybersquatting."

It's clearly in the financial interests of UDRP providers (and
panelists) to continue to expand the scope of cases and tilt their
decisions towards complainants in order to encourage more complaints
overall, and more complaints that involve either themselves as
panelists or their UDRP provider ("forum shopping"). This represents a
perversion of the system of justice that domain registrants rely upon.

ICANN staff and the GSNO should prepare an issues report, and perhaps
fund independent scholarly research like that conducted by Professor
Michael Geist in the past:

http://www.udrpinfo.com/

Sincerely,

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