Seven panelists hear nearly half of all NAF UDRP cases.
Zak Muscovitch has updated his National Arbitration Forum (NAF) panelist study originally released in 2010.
The results published on DNAttorney.com have basically the same conclusion as his original report: the National Arbitration Forum hands most of its caseload to a select group of panelists.
Just seven American panelists heard nearly half of all of NAF’s caseload from March 5, 2010 – July 4, 2012.
It’s worth pointing out that these results are in stark contrast to panelist distribution at World Intellectual Property Organization, NAF’s main competitor in the UDRP business. When the original report came out in 2010 I took a look at WIPO’s numbers. The difference was shocking.
At that point, even the most active WIPO panelist wouldn’t fall into the top 10 at National Arbitration Forum. Additionally, the five most active panelists at WIPO were in the bottom quartile when it came to finding in favor of the complainant and transferring or canceling a domain.
In 2010 I aksed David Roache-Turner, Head – Domain Name Dispute Resolution Section at WIPO, about these findings. He responded:
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 2010 National Arbitration Forum explained to ICANN how it ends up favoring a select few panelists. It was responding to questions regarding the proposed Uniform Rapid Suspension scheme:
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.
You might take those claims at face value if you didn’t have WIPO to compare.
Yea this pretty much seems corrupt, but realistically it is probably not because although they have this big roster of panelists to choose from likely most of them are flakey, unavailable, uninterested, or unreliable to respond when contacted. That’s my guess anyway. To add to this study Zak should fire out a quick email to all the other attorneys simply asking how they feel about it and if they’d even like to be included in more cases. If there is an overwhelming response of them feeling shortchanged (since they would get paid if they did work right?) then that would confirm and speak volumes. Odds are that most of their roster is just for show and they wouldn’t want to admit that, however that would explain why a certain group gets the majority of the cases. He should also put a tracking pixel in the emails so he could see how many of the other panelists even bother to open the email or how regularly they even check their email.
Hey Andrew, who owns the NAF?
Um, still the Accretive hedge fund?
According to section B near the end of:
http://www.icann.org/en/help/dndr/udrp/provider-approval-process
“Applicant should propose a list of highly qualified neutrals who have agreed to serve as panelists. Applicant’s list should include at least twenty persons.”
Given Zak’s statistics, it’s not clear to me that NAF even has the 20 panelists that they’re supposed to have had at the very beginning, given the distribution of caseload. Panelists who “refuse most cases” or can’t do the job within the period should simply be removed from their alleged list of panelists, so that it reflects reality and not fiction.
ICANN ignored past NAF discoveries (e.g. the cut/paste issues, etc.). Add this as yet another data-point.
There are calendaring systems that can be used for panelists to indicate their availability in advance or in real-time, and then cases can be assigned randomly or in rotation. (search Google for “shift scheduling”)
Actually, according to the “About Us” page for NAF:
“Our Founders
In 1986, a small group of visionary legal experts—litigators, mediators, and former judges—came together to create the National Arbitration Forum (FORUM). They leveraged their knowledge of court processes, information technology, and the law to create a broad array of alternative dispute resolution (ADR) programs that offer the integrity of the court system with more choices and control.”
Is it possible that the founders of NAF are listed as panelists, including any of the 7 that Zak listed??
@ George Kirikos – I’m waiting for Mr. Berryhill to chime in again.
I know that when they got busted for the credit card arbitration they were owned by a private equity group that also owned a large debt collection firm.
“Is it possible that the founders of NAF are listed as panelists, including any of the 7 that Zak listed??”
Is it possible? Given that nobody knows who the owners are, it is certainly possible.
Do they? I don’t know.
ICANN should force all UDRP providers to re-certify, with an application at least as detailed as that for new gTLD applicants.
This might actually be a good thing in the long run. By having a few panelist take on many cases they will get experience.
It is then more likely they will follow precedence from earlier cases.
Instead that they make up their own opinion based only on that case.