Expedited Decision proposal of the Czech Arbitration Court.
My comments on this proposal could not be opened and a colleague also had
the same trouble. So I am repeating them here in the body of this email and am
also attaching them as a pdf. I would be grateful if you post them again and
see if they can be opened.
Much obliged.
9
December 2009Dear
Colleagues,
Here are
some comments on the Expedited Decision proposal of the Czech Arbitration
Court.
Perhaps,
to be more correct, they are only questions, as I hope I could work as a
panellist
within whatever system exists. However, these questions might be asked during
the debate and it would be a useful contribution to the debate to see if there
are answers to them. I think it would be agreed that the answers should be
clear and beyond argument, to avoid creating further disputes about a system
designed to resolve disputes.
I will
try to deal with some of the important issues under several headings.
QUESTION: Can the Expedited
Decision proposal be implemented by amendments to the Supplemental Rules of the
Czech Arbitration Court?
When
parties register domain names they enter into an agreement with their
registrar that
includes the Uniform Domain Name Dispute Resolution Policy (“the
UDRP"). The UDRP provides that proceedings to
deal with disputes " will be conducted according to (the Rules) ...and the
selected administrative-dispute-resolution service provider's supplemental
rules."
Most
people would say that it is a fair interpretation of this clause of the UDRP
that to be within the UDRP, proposed dispute resolution proceedings must comply
with the ICANN Rules for Uniform Domain Name Dispute Resolution Policy (“the
Rules"). But the clause also means that the proceedings must comply with
the provider's supplemental rules.
The
clause is really clear that the proceedings must comply with both sets of
rules. The Expedited Decision proposal of the CAC is that the substance of the
expedited scheme will be implemented by the CAC's supplemental rules. The
question therefore is whether the substance of proceedings can be provided for
by a provider's supplemental rules. The CAC says that it can.
Some
observers, however, would say that the substance of the proceedings must
come from the ICANN Rules and that the providers' supplemental rules may only
govern incidental or procedural matters that do not go to matters of
substance.
Those
observers might draw attention to several things tending to suggest that
procedures such as the proposed expedited decision scheme cannot be dealt with
in supplemental rules, but that it must be dealt with in the ICANN Rules
themselves.
The first
is the name itself. When the word "supplemental" is used it suggests,
perhaps strongly, that only minor and incidental administrative matters should
be dealt with by them and not matters of substance like the substance of a new
dispute resolution process.
Secondly,
the UDRP undoubtedly provides that the dispute resolution process "
will be conducted according to (the Rules) ...and the selected
administrative-dispute-resolution service provider's supplemental rules."
The Rules give a definition of supplemental rules which includes the notion
that they will deal with “such topics as fees, word and page limits and
guidelines...communicating ...and the form of cover sheets." It is a well
known principle of statutory interpretation that, if you are trying to give
meaning to a general expression like supplemental rules, you may look at any
examples given of the sort of things to be covered. The examples may then be
used to colour the meaning to be given to the expression. So, on that argument,
supplemental rules would cover incidental administrative matters like fees and
word limits, but not matters of substance.
So,
someone who wanted to argue against the whole Expedited Decision
proposal might say that the process itself could not be implemented by
supplemental rules because the process itself is too substantial to deal with
in supplemental rules.
Of course,
some aspects of the expedited process deal with incidental or administrative
matters like forms, word limits and fees. But it might be said that other
aspects of the proposal seem to be matters of substance such as a deliberative
finding one way or the other, on:
(ii)
whether a case was" too factually or legally complex for" an
expedited decision; or a finding that
(iii)
" it would for any other reason be unfair or otherwise inappropriate” for
an expedited decision,
which are
really judicial functions and substantial, not incidental,
matters.
The other
query about supplemental rules is that the definition in the ICANN Rules says
that they "shall not be inconsistent with the Policy (i.e. the UDRP) or
these Rules." Some people might say that an expedited process resulting in
a check box form where the panellist fills in "Yes" or “No" and
without a decision with published reasons, is inconsistent with the Rules,
because the Rules expressly require a decision with reasons and the publication
of the whole text of the decision, including the reasons. So it might be said
that the Expedited Decision proposal was inconsistent with the Rules.
So the
question is whether these points suggest that the Expedited Decision proposal
cannot be implemented by changes to a provider's supplemental rules as that is
not what supplemental rules are supposed to deal with.
As I have
said above all that I am doing is to pose some questions to see if there are
ready and persuasive answers to them.
QUESTION: Is the Expedited
Decision proposal outside the Uniform Domain Name Dispute Resolution Policy
(“the
UDRP") itself. In other words, if the Expedited Decision proposal
could be implemented by supplemental rules, would that be the end of the matter
or would it be contrary to the Policy itself?
When
parties register domain names they enter into an agreement with their
registrar that
includes the Uniform Domain Name Dispute Resolution Policy (“the UDRP").
The UDRP
provides that proceedings to deal with disputes " will be conducted
according to (the Rules) ...and the selected administrative-dispute-resolution
service provider's supplemental rules."
Accordingly,
the only proceedings that can be imposed on a registrant are those where the
proceedings”will
be conducted according to (the Rules) ".
The Rules provide a detailed procedure.
The expedited procedure is a different procedure. It is clearly intended to be
different because it is called the Expedited Decision proposal.
It
might therefore be said that irrespective of its merits, the expedited
procedure is not a procedure in accordance with the Rules simply because it is
a different, although additional one.
Put
differently, some people might say that when a registrant signed up for a
domain name it did so on the basis that it agreed to the dispute resolution
system
set out in the registrar agreement and not a different one.
The other
question that comes from this is that if it is a different system and if the
changes are within the Rules, can they apply to the millions of domain names
already issued subject to a contract that the only dispute resolution scheme is
the current one prescribed under the Policy or would they apply only to new
domain names issued after the changes were introduced?
QUESTION: Is the proposal outside
the ICANN Rules for Uniform Domain Name Dispute Resolution Policy (“the
Rules")?
A.GENERAL
In one
sense this is the same as the previous question, because the only compulsory
dispute resolution scheme to which a registrant has agreed is one where
proceedings “will be conducted according to (the Rules)."
When
parties register domain names they enter into an agreement with their
registrar that
includes the Uniform Domain Name Dispute Resolution Policy (“the UDRP").
The
UDRP provides that proceedings to deal with disputes " will be conducted
according to (the Rules) ...and the selected administrative-dispute-resolution
service provider's supplemental rules."
Accordingly,
to be within the UDRP the proceedings must be "conducted according to (the
Rules)...".
The Rules
provide for
- a
Complaint
- a
Response that may be submitted up to 20 days after the commencement of the
proceedings
- the
right of the Complainant to elect to have a single member or 3 member panel and
the right (in the latter case) to suggest candidates
-the
right of the Respondent to elect to have a 3 member panel and the right to
suggest
candidates
- an
obligation on the panel to conduct the proceedings in such manner as it
considers appropriate in accordance with the UDRP and the Rules
-the
right of both parties to expect that a panel will conduct the proceedings as it
considers appropriate and in accordance with the UDRP and the Rules
- an
obligation on the panel to determine admissibility, relevance, materiality and
weight of evidence
- an
obligation on the panel to decide the complaint with reasons
- an
obligation on the panel to give those reasons
- an
obligation on the provider to provide the full text of the decision and
(generally)
to publish the full decision.
The
proposed rules for Expedited Decision cases propose an additional and different
structure at the behest of the Complainant. But the proposal is not contained
in the present Rules.
Could it
not therefore be said that the expedited proposal is outside the Rules?
B. PARTICULAR
For the
process to be in accordance with the Rules, the decision coming at the end of
the process must be given:
- for
reasons
- the
reasons must be given (meaning that there must have been a conscious process
leading to reasons and the reasons must be stated)
- there
must be something that can be accurately described as “the full text of the
decision"
and something that can be accurately described (whether or not it is the
same thing) as “the full decision".
Could it
be said that the Expedited Decision proposal does not provide for any of these
elements? The proposal is that the expedited decision “shall" be in the
prescribed form and the prescribed form is therefore an essential part of the
process.
It might be said that, by implication, the decision is therefore not to be a
reasoned decision in the form of building on the evidence and coming to a
conclusion on what it all means and why.
It could
also be said that the form does not provide for reasons to be given because it
provides for boxes to be ticked rather than reasons to be given.
It could
also be said that there are no reasons for a decision under the expedited
process or at least that there is no provision for reasons to be given in the
form of a decision as it presently proposed.
In
support of that view critics might say that a recital in the form, already
printed before the panel comes to the case, with a check box, is not a
statement of reasons.
It could
also be said that in the expedited process there is no “full text of the
decision" because the intention of the form is that it is a check list and
not what is normally understood as a decision with a text.
It could
also be said for the same reason that under the Expedited Decision
proposal there is no “full decision".
Other points about the form of
the Decision
A
question may be asked as to why there is provision in the form for additional
reasons on the issue of bad faith. It might be suggested that as there is
special provision for reasons on the issue of bad faith, this reinforces the
notion that there are no reasons normally given under the expedited process on
other issues.
The other
question about the form and one that has been raised by an observer who has
posted some comments on the proposal is why there is no provision in the
form for a finding of Reverse Domain Name Hijacking (RDNH). RDNH must be found
if the Panel finds that the facts are there to support it (Rule 15(e). If it is
contemplated that there will be no provision for RDNH under the expedited
Decision scheme, that would be contrary to the ICANN Rules. If it is still to
be considered under the Expedited Decision proposal, then there is probably an
explanation needed as to why there is not provision for it in the mandatory
form.
Some who
wanted to object to the process after the event and set a decision aside might
also say that the expedited process is at odds with the ICANN Rule that
requires the panel to conduct the proceedings " in such manner as it
considers appropriate"(Rule 10 (a)) and the Rule that requires the panel
to determine admissibility, relevance, materiality and weight of the evidence.
They might say that this so because the expedited process requires the panel to
run through a check list and tick the boxes rather than to go through a process
requiring it to consider the evidence and weigh it up.
These
questions may be asked and if they are, some people may come to the conclusion
that the Expedited Decision proposal could not be implemented under the Rules
as they are and that the Rules would have to be amended.
QUESTION: Can the Rules be
amended to accommodate the Expedited Decision proposal of the Czech Arbitration
Court?
Rule 21
allows the Rules to be amended, but only with the express written approval of
ICANN. So ICANN could amend the Rules to provide for a new procedure such as
the Expedited Decision proposal of the CAC. In fact, as that power of amendment
is there, the intention of those who drafted the Rules was presumably that the
Rules as they are, were meant to be the only rules that governed the substance
of dispute resolution schemes and that if there were to be any other schemes
they could only be implements by amending the Rules themselves.
The
question might also be asked whether, if the Rules are amended to institute the
Expedited Decision proposal, the amended Rules would apply only to domain names
registered after the amendments come into effect or to all domain names.
In that
regard, it might be asked what is the significance of the fact that the UDRP
itself seems to be saying that the registrant is agreeing, on registration, to
dispute resolution under the Rules that were available on 24 October 1999, not
the Rules as amended from time to time, which is an expression sometimes used.
If those who drafted the UDRP meant this literally, then any change to the
Rules might be said to apply only to domain names registered after the change.
Trusting
these comments are of some interest even if only to stimulate debate.
Yours
sincerely,
The Hon
Neil Anthony Brown QC
www.neilbrownqc.com
www.domaintimes.info
THE HON NEIL BROWN QC ARBITRATOR AND MEDIATOR
CLERK - MICHAEL GREEN PTY LTD
OWEN DIXON CHAMBERS
205 WILLIAM STREET MELBOURNE
VIC 3000 AUSTRALIA
Tel : Melbourne : (+61 3) 9534 5436 and
(+61 3) 9225 7222
Cell : 0400 123 254 Int . : +61 400 123 254 Fax : (+613 ) 9225 8485
London : 07931- 218559.
Email : nabrownqc@xxxxxxxxx
Website : www.neilbrownqc.com
__________________________________________________________________________________
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Dear Colleagues-1.pdf |