No contract exists with UDRP providers.
With two UDRP arbitration providers trying to change up the rules, attorney Jim Davies tried to get his hands on the contract between ICANN and its approved UDRP providers. He hit a stumbling block: there is none.
You can see the details of his request for the contract in his public comments (submitted as an individual, not on behalf of his firm or clients) on ICANN’s web site. But it’s worth reprinting them here.
I was very surprised to learn that there is no contract between ICANN
and the accredited UDRP providers. Given the importance of the UDRP to
all domain registrants, who are contractually bound to accept its terms
when they register a domain, there really must be a contract put in
place with the accredited providers as a matter of the utmost urgency.
Without it, it is not clear what control (if any) ICANN can apply on the
accredited providers to ensure that (as a minimum) they comply with the
UDRP Policy and Rules.Whilst ICANN goes through due process in preparing a draft contract and
reaching consensus within the community on its content, it should make
clear to the providers that there can be no further amendment to their
Supplemental Rules. I would also suggest that any contract needs to
provide for a review of the providers’ existing Supplementary Rules; and
also an independent audit of the processes already followed by providers
when handling UDRP cases.I think that if ICANN follows any other path, it will be badly failing
the millions of registrants who are bound to the UDRP as part of their
registration agreement. The UDRP is an important process that impacts
on many parties, with over 30,000 decided cases already. To maintain
the UDRP’s legitimacy, the relationship with the accredited providers
must be put on a proper contractual footing and it must be brought under
the control of ICANN.
The deadline to submit your own comments on Czech Arbitration Court’s plans is tomorrow. You can see my brief comments here.
I love the “Czech Arbitration Court”.
It is not a court, and it’s not an organ of the Czech Republic.
Consider the result if the Czech court system brought an action against the CAC:
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http://www.disputes.org/decisions/0563.htm
“Neither the complainant nor the respondent have any registered trademarks for the term ‘Federal Court of Canada’. However, complainant has common law rights to the name based on its extensive and continuous use of the name Federal Court of Canada.”
—–
The question here is whether one would be likely to confuse “Czech Arbitration Court” with an actual court in the Czech Republic.
I’d be willing to bet there are quite a few folks out there who believe it is something other than a for-profit private organization.
One thing to note about UDRP provider contracts. UDRP providers are required to post all of their decisions. When the UDRP provider goes out of business, the decisions disappear. The only reason I can provide that link to an eResolution decision is because someone volunteered to make them available. But all of the links from the ICANN list of proceedings to eRes decisions are broken.
Likewise, when CPR-ADR of New York stopped providing UDRP services, they took the decisions down, and had to be prodded by ICANN to put them back up.
The problem of failure to provide stable URL’s for UDRP decisions has been known for several years:
http://www.icannwatch.org/article.pl?sid=04/01/02/2015214
ICANN does nothing about it.
And now we know why. UDRP providers are free to do whatever they want, and are accountable to nobody.
Interestingly, a respondent is required to indemnify the UDRP provider. While there is a lot of hand-wringing in UDRP policy about changes to WHOIS during a proceeding, for example to identify the party behind a privacy service, and how that would “change” the “mutual jurisdiction” {1}; it seems that the same policy makers are perfectly comfortable with a domain registrant’s commitment to indemnify an unknown party at the time the domain name is registered. That asymmetry is typical of the one-sided legal analysis that passes for rational thought in this arena.
{1} Although in fact, if the Complainant chooses the registrar’s location, the mutual jurisdiction will not change, and the location is typically the same for the registrar and the privacy service. Hence, the “issue” here is primarily FUD.
The attorney Jim Davies’ last paragraph in italics is profoundly important. And to the extent that UDRP outcomes are subjected to the inconsistent standards of different UDRP providers, then the UDRP process will have no integrity.
ICANN must INSURE that whatever process registrants are bound to will hold all parties to one clear set of standards.
Quote –
“I was very surprised to learn that there is no contract between ICANN and the accredited UDRP providers.”
Wow. I can’t believe that.
I wonder if the DOC and Congress knew this when they ordered more transapency from Icann?
Maybe, Icann wanted that so no one can sue them?
“Maybe, Icann wanted that so no one can sue them?”
No, WIPO wanted that. Signing a contract is to WIPO what garlic is to vampires. As an international treaty organization it is virtually impossible for them to be held accountable in a court for anything, since they will claim immunity from suit.