Domain name arbitrator asks good questions about Expedited UDRP.
The Hon. Neil Brown, a UDRP domain name arbitrator, has submitted comments to ICANN regarding Czech Arbitration Court’s plans for expedited UDRPs. He actually phrases them as rhetorical questions, but they certainly raise a number of issues. They’re worth reading in their entirety, but here’s a summary:
Can the Expedited Decision proposal be implemented by amendments to the Supplemental Rules of the Czech Arbitration Court?
It’s a good question. After all, as Brown explains, the Supplemental Rules are supposed to cover “such topics as fees, word and page limits and guidelines…communicating …and the form of cover sheets.”
Although CAC’s proposal may fit that description by the letter of the law, it certainly doesn’t meet the spirit of the law.
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?
Brown suggests that the Expedited Decision procedure is different from the UDRP rules. Since domain registrants agree to be subject to the UDRP rules at the time of registration, would they actually be subject to a different set of rules now?
Is the proposal outside the ICANN Rules for Uniform Domain Name Dispute Resolution Policy (“the Rules”)?
UDRP requires decisions to be based on “reasons”, and for those reasons to be laid out in “the full text of the decision”. CAC’s proposal basically involves a form with check boxes. Brown questions:
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.
Where’s Reverse Domain Name Hijacking?
Brown questions why CAC’s form doesn’t have a box to check when the complainant commits reverse domain name hijacking. As Brown has pointed out before, a respondent doesn’t need to ask for RDNH in order for the panel to consider it. In fact, the panel has a responsibility to consider it.
Can the Rules be amended to accommodate the Expedited Decision proposal of the Czech Arbitration Court?
It’s possible that ICANN can amend the rules for an expedited UDRP (as compared to changing supplemental rules). But this begs another question: if you registered a domain before the new rules came into effect, should you be subject to the new rules?
The deadline to submit comments on CAC’s proposal is tomorrow.