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  • National Arbitration Forum Provides Shortcut to UDRP Arbitrators

    1. BY - Nov 30, 2009
    2. Policy & Law
    3. 10 Comments

    Law clerk may have written much of your domain dispute.

    Being a domain name arbitrator under UDRP for National Arbitration Forum doesn’t pay particularly well. That is, if you are an arbitrator who takes your job seriously.

    But National Arbitration Forum provides a shortcut to arbitrators, allowing them to “cut-and-paste” their way to quick decisions.

    Here’s how it works. When an arbitrator receives a new UDRP domain name case, (s)he is also provided with a memo written by a National Arbitration Forum law clerk. This memo outlines the main issues under each of the three elements of a case (confusing similarity, rights or legitimate interests, registration and use in bad faith). For each element, it provides a case both for the complainant and the respondent.

    For example, it may suggest that if the arbitrator is in favor of the complainant on confusing similarity, possible support for the reasoning is X, Y, and Z and vice versa.

    It’s true that many judges have law clerks who assist them with research. But under the structure of domain name arbitration, this practice creates a number of problems.

    A couple of the problems are technical issues. First, the process defies the logical legal process of the arbitrator considering all of the facts and then coming to a conclusion on his or her own. Second, it may violate rule 15 (a) of the UDRP rules:

    Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.

    National Arbitration Forum is extending beyond the statements and documents submitted, providing an additional document for consideration by the arbitration panel.

    But the biggest problem is that the law clerk memos enable “cut-and-paste” arbitrators who quickly decide and write cases based on what the law clerk provides to them. For each aspect of UDRP, they merely cut and paste what the law clerk wrote for their particular view, put it in the correct format, and turn it in. And, depending on whom you talk to, some times the law clerks get it wrong.

    This may explain why you see very similar logic and explanations across multiple UDRPs by different arbitrators. It may also explain why you see National Arbitration Forum cases with empty references and lack of logical flow.

    National Arbitration Forum did not respond to repeated requests for comment on this story.

    Next time you lose a UDRP, consider that you may have been a victim of a cut-and-paste arbitrator.

10 Comments
  • National Arbitration Forum Provides Shortcut to UDRP Arbitrators – http://tinyurl.com/yed2j83

  • I look forward to the day when someone will lose a UDRP, but challenge the decision in court with full discovery of the UDRP provider(s), revealing all the internal biases that have caused mandatory arbitration to be out of favour for credit card and other kinds of disputes. The UDRP providers need to be wary that they don’t open themselves up to a test case that brings them all down.

  • I think we should just all file a case at our courthouse every time a UDRP is sent to any of us domainers.

    That should slow down many of the reverse domain name hijacking.

  • The case filer and responder should each do their own research, to supply similar cases both to support and deny their own positions, to append the clerk’s work!

  • NAT ARB FORUM is corrupt from top to bottom.
    Now they would be a great target for a class action suit.

  • Soundly Reasoned says:

    November 30, 2009 at 12:56 pm

    Filing your case against a UDRP complainant in Federal district court will run you 10-20k just for the first retainer. Then look to spend approximately 50-70k in total legal costs and 1-2 years in court/legal proceedings. Even if you win the other party can still appeal and drag you down further in money and time. District court judges rarely award legal fees in these types of matters unless you can prove the other party had willful malicious intent. That is no easy task.

    This is why you see most companies file a UDRP because they themselves do not want to go through all of that.

  • I will leave it to former UDRP paralegals/assistants-turned-lawyers to confirm this is the case, but I can tell you that they definitely cut and paste a lot of the arguments right into the decision due to the miracle of word processing software.

  • John Berryhill says:

    November 30, 2009 at 3:16 pm

    “I look forward to the day when someone will lose a UDRP, but challenge the decision in court with full discovery of the UDRP provider(s”

    The probability of that happening is approaching unity.

  • […] It didn’t help that the owner of eHelper.com didn’t respond to the complaint. But finding typosquatting in this case is quite a stretch. Perhaps it’s an example cut-and-paste arbitration. […]

  • […] of these cases were handled through National Arbitration Forum (NAF). NAF hires interns to provide suggested decisions/language for UDRP panelists, which the panelist can merely cut and paste into his or her official […]

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