WIPO panelist selection numbers are very different from National Arbitration Forum. Why?
Attorney Zak Muscovitch released a study last month about distribution of cases to panelists at National Arbitration Forum. His findings were shocking. Not only were there “runaway panelists” who have heard a disproportionate number of cases, but those runaway panelists happen to find in favor of complainants much more than the typical panelist.
With the help of UDRPsearch.com, Domain Name Wire analyzed similar data from the other leading UDRP provider, World Intellectual Property Organization. The results are shocking, but not because WIPO shows a similar sort of systematic bias. Instead, the data show completely opposite results.
Analyzing WIPO UDRP data from 1999 until early 2010, it turns out that the five WIPO panelists who have heard the most cases are in the bottom quartile when it comes to finding in favor of the complainant and transferring or canceling a domain. 8 of the top 10 busiest panelists are in the bottom quartile. In other words, there’s little possibility that cases are being handed to arbitrators because they’re more likely to rubber stamp them for the complainant.
Top 10 Panelists by Number of Cases
Willoughby, Tony 293
Abbott, Frederick M. 238
Donahey, M. Scott 236
Foster, Dennis A. 204
Barker, Sir Ian 196
Page, Richard W. 196
Limbury, Alan L. 193
Bernstein, David H. 160
Partridge, Mark 158
Perkins, David 157
Top 5 Lowest Complainant Win % *
33% Sorkin, David E.
56% Lyon, Richard G.
57% Partridge, Mark
59% Blackmer, W. Scott
60% Bernstein, David H.
*Minimum 50 cases required to be considered
When you consider WIPO’s panel selection criteria, these numbers shouldn’t be too surprising. David Roache-Turner, Head – Domain Name Dispute Resolution Section at WIPO, explained to Domain Name Wire in a written statement (you can read the full statement here – pdf):
As to WIPO’s own panel appointment considerations, these are informed by a range of highly conservative, legally and ethically responsible factors, including: panel language capability; party and panel nationality; geographic diversity; panel availability; panel experience; jurisdictionally relevant expertise; where possible, prior cases involving parties at issue, and citation in pleadings to previous decisions; and lack of panel conflict as confirmed by declarations of independence and impartiality (WIPO’s declaration document is publicly posted on the WIPO website).
Indeed, some of the most prolific WIPO panelists probably find for complainants less often because they are assigned to more contentious cases. Assignment to three member panels might also play a role, since three member cases necessarily have an active respondent.
To call a WIPO panelist “prolific” might be a little misleading as well. Even the most active WIPO panelist wouldn’t fall into the top 10 at National Arbitration Forum. NAF’s top panelist has heard over three times as many cases as WIPO’s most active panelist, a fact not lost on Roache-Turner:
“As you would be aware, none of the most frequently appointed WIPO panelists even remotely approach the remarkable NAF appointment shares now receiving attention. In apparently sharp contrast to the situation elsewhere, of the most frequently appointed WIPO panelists, the transfer rate is, as you would also know, well within the overall average for all UDRP panelists.”
In a recent letter to ICANN relating to the proposed Uniform Rapid Suspension scheme, National Arbitration Forum explained some factors used in selecting panelists:
Some practical considerations the Forum asks ICANN to contemplate before promulgating specific rotational rules are that some panelists are simply far more available than others. There are some panelists who refuse most cases, some who have conflicts, and others who take more time than the Policy and Rules have allotted to accept the case. So, while the Forum endeavors to appoint panelists in as fair a rotation as possible, there are varying considerations that should be taken into account.
How can two UDRP managers, both claiming to assign panelists equitably, have such different numbers? Surely Carolyn Marks Johnson, who is closing in on 1,000 cases decided at National Arbitration Forum, isn’t assigned to that many cases merely because she’s more available than other panelists.
At ICANN’s board meeting last week, it discussed “UDRP Policy“ relationships with service providers; changes in procedures”. The minutes from that meeting are not yet available, so it’s unclear exactly what the discussion was about.
But to maintain confidence in UDRP, it makes sense that there would not be any significant difference in how various providers assign panelists or interpret the rules of UDRP. Clearly, that’s not the case.