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ICA Requests Action on Czech Arbitration Court Policy Changes

Internet Commerce Association wants ICANN to act quickly on move by UDRP provider.

Internet Commerce Association counsel Philip Corwin has sent a letter (pdf) to ICANN CEO Rod Beckstrom and Chairman of the Board Peter Dengate-Thrush asking it to act on Czech Arbitration Court’s new UDRP policy.

Czech Arbitration Court (CAC), one of the newest UDRP providers, proposed a new scheme in which it would charge only 500 EUR to file a domain name complaint and arbitrators would not spend as much time on cases.

ICANN held a public comment period on the proposal, in which all 15 comments were opposed to CAC’s scheme. That includes comments from an existing arbitrator who questioned the basis for the proposal.

Counsel for CAC posted a comment on Domain Name Wire’s earlier story on the proposal, stating that it would not move forward without ICANN’s blessing. Instead, before getting final word from ICANN, CAC made a few changes to the proposal and announced it was going forward with our without ICANN’s approval.

So far, ICANN has not made any public comment on CAC’s move that I’m aware of. It was briefly discussed in another context on the first day of ICANN’s meeting in Nariobi.

Whether ICANN acts on CAC’s move or not, it needs to say something.

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  1. Jim Davies says

    ICANN has published its summary of this – it appears in the Archive for December 2009.

    Is it not normal for a recently summarised forum to go from “Awaiting Summary/Analysis” into “Recently Closed Comment Forums” on the Public Comment homepage? This one went straight into the archive – is this normal?

    http://forum.icann.org/lists/cac-prop-supp-rules/pdfu6IrZJuNmf.pdf

    Anyone hoping for anything vaguely useful from ICANN will be sorely disappointed. It totally evades the point that CAC have in fact changed the UDRP for users of their service.

    This is a major structural change in the UDRP that is happening because an unregulated commercial provider is seeking greater market share by pandering to complainants, at the expense of all registrants and due process at ICANN.

    More specifically, the UDRP only allows for the payment of one fee at the outset, not this split fee system. UDRP Rule 19 requires payment of the “initial fixed fee” before actioning the complaint. Rule 19 does not allow for the payment of a further fee, other than when a registrant elects for a three-member panel.

    So unless and until a provider receives all of the “initial fixed fee”, it may not act on the complaint.

    • Andrew Allemann says

      @ Jim Davies – good find. It is strange that it wasn’t posted on ICANN’s home page, or at least I didn’t see it. This is particularly interesting:

      The CAC announced that in light of the comments received, it was withdrawing its proposal to amend 
      its supplemental rules, and instead would implement a fee change only.  No expedited process is being implemented.

      Hmm, seems like more than just a fee change to me.

  2. Philip Corwin says

    ICANN says that CAC has withdrawn its proposal — but CAC quite candidly states that it proceeding with “the core” of its proposal, which is a 60% cut in filing fees for all cases in which there is no response from the registrant (about 70% of all UDRPs) and the panelist decides, in his/her sole discretion,that no detailed decision is needed.That is, you get a UDRP decision without the reasoned analysis that the UDRP is supposed to require.

    Now if a lot of complainants start filing with CAC in the hope of saving on the filing fee, how often do you think CAC panelists will decide that they actually have to think about their decision and require a higher fee for doing so — and expect to be called back to adjudicate future disputes?

    Blow away the smoke and mirrors and it’s still the same core problem that all the commentators unanimously objected to. It’s an outrage if ICANN lets this move forward to implementation.

  3. Icann viewer says

    Isn’t it interesting how often the word outrage (or something similar) is in the same sentence as Icann?

  4. Marc J. Randazza says

    Phil,

    Come on. An “outrage”? Un twist your panties a little bit. If there is a response from the domain holder, the streamlined procedure drops away.

    The crybabies on the domainer side of this issue really do nothing to shore up the credibility of this business.

  5. Philip Corwin says

    The process of letting a major UDRP change take effect via an abuse of limited Supplemental Rules on a unilateral, non-uniform basis by a single provider is an outrage. This is not market competition where one provider has elected to reduce its UDRP fees across the board — CAC has elected to set a lower fee for a less than full UDRP where no response is received.

    I posed a question about this during the ICANN Board’s Public Forum last Thursday and staff again endorsed the CAC fiction that the original proposal has been withdrawn — when even CAC concedes that they are proceeding with its “core”.

    But you are absolutely right that if every registrant files a response then CAC’s bid to buy market share will be derailed. Registrants should do that anyway, in any UDRP, as failing to contest one UDRP can cede an advantage to complainants in future proceedings.

  6. Marc J. Randazza says

    Phil,

    I just think that hyperbole like “outrage” doesn’t belong in this analysis. I respect the work you do, and respect your reputation. You’re making yourself look foolish in this situation though.

    I don’t agree that “failing to contest one UDRP can cede an advantage to complainants in future proceedings.” If a respondent is clearly going to lose, it is better to contact the complainant and offer the certainty of victory in exchange for withdrawing the complaint.

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