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Net law expert slams domain dispute process
By Kieren McCarthy
07/03/2002
The process for deciding ownership of Internet domains is flawed, biased and in drastic need of reform, an expert in Internet and e-commerce law has concluded in a study released today.
Professor Michael Geist of the University of Ottawa has extended a previous study last year into how ownership of domain names is decided and concluded that, if anything, the situation has got worse.
The study is particularly timely given that Internet overseeing organisation ICANN is hosting an international meeting in Ghana next week in which the process (called the Uniform Dispute Resolution Process or UDRP) is to be reviewed.
Last August, Professor Geist accused two of the four domain arbitrators - the National Arbitration Forum (NAF) and the World Intellectual Property Organisation (WIPO) - of actively choosing judges who favoured complainants (trademark holders). This ensured them more business as the complainant in domain disputes is allowed to decide where the case is heard.
This accusation was rebuked by arbitration judge Scott Donahey, the arbitrators themselves and ICANN, who all claimed Geist's conclusions were flawed as he had not included undefended (default) cases when comparing NAF and WIPO to the other main domain arbitrator, eResolution.
In the new study, all default cases have been included as well as the most recent cases up to 18 February 2002, and Geist's conclusions are even more striking. With undefended cases included, eResolution chooses in favour of a complainant in 64 per cent of cases when one judge is presiding (63 per cent last time).
Since the arbitrator itself decides who will decide who sits on a one-panel case, the significantly higher percentages for NAF and WIPO (86 and 83 per cent respectively) raise questions over just how uniform the dispute resolution process really is.
It is no coincidence, Geist argues, that NAF and WIPO have the lion's share of the market - 34.5 and 59.2 per cent respectively. A system which rewards those who chose in favour of one party in an arbitration dispute is unlikely to be perceived of as fair. And, as if to confirm the damaging effects of this policy, eResolution announced its bankruptcy at the end of 2001.
Adding further fuel to the fire is the fact that the "random" selection process for judges has seen just six panellists at NAF decide 56.4 per cent of all one-judge cases. Of these cases, 95.1 per cent were in the complainant's favour.
WIPO is better in this respect in that 121 judges have now decided at least five cases apiece, although there remains a mathematical discrepancy between a random selection of judges and those actually chosen to preside over single-panel cases.
Details at: http://www.theregister.co.uk/content/6/24318.html
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