Concerns about CAC Proposals for Expedited UDRP

["Jim Davies" <Jim.Davies@xxxxxxxxxxxx>]

I am struggling to see how sweeping changes to the operation of the UDRP
being proposed by CAC complies with the definition of what Supplemental
Rules are allowed to deal with.  

 

The definition of Supplemental Rules is found in Paragraph 1 -
Definitions - of the Rules.  It states:

"Supplemental Rules means the rules adopted by the Provider
administering a proceeding to supplement these Rules. Supplemental Rules
shall not be inconsistent with the Policy or these Rules and shall cover
such topics as fees, word and page limits and guidelines, the means for
communicating with the Provider and the Panel, and the form of cover
sheets"

When a similar Summary Judgment process was introduced in the Nominet
DRS, it was done by way of a change in the Nominet DRS Policy itself.  

 

Apart from anything else, UDRP Rule 15(d) requires the Panel to "provide
the reasons on which it [the decision] is based".  The pro-forma draft
decision template included in the CAC documentation can be completed
without giving any substantive reasons for the UDRP decision that has
been given.  Experience with the virtually identical Nominet form and
procedure suggests that simply ticking the boxes is how most decisions
will be communicated.  A few tick boxes do not amount to the provision
of reasons on which the decision is based.  

 

I believe that this proposal is a de facto change in the UDRP Policy and
Rules; or alternatively a breach of what is allowed under the definition
of Supplemental Rules.  Indeed, I think the same is true of a number of
the Supplemental Rules initiated or proposed by various providers - e.g.
NAF's Supplemental Rule 7 - Submission of other Written Statements and
Documents; and the proposed expedited UDRP procedure recently announced
by WIPO.  

 

When a registrant enters into a registration agreement, are they now to
be expected to find and review each ICANN accredited provider's
increasingly complex Supplemental Rules?  I thought the U in UDRP stood
for Uniform.

 

I would be most grateful if someone from ICANN could provide a link to
the contract that a Provider enters into when ICANN grants them the
right to provide their services as a UDRP Provider.  That way, one will
be able to evaluate whether these proposals (and some existing
Supplemental Rules) are a breach of that contract and what steps ICANN
can (and should) take to prevent CAC and other Providers from short
circuiting due process, by effectively re-writing the UDRP as it is to
be applied by them.

 

Best wishes

 

Jim Davies

 

The above are my personal views and not necessarily those of any
employer or client.