[bc-gnso] For review / approval by 28-Oct: BC Comment on Accreditation of UDRP providers

Steve DelBianco sdelbianco at netchoice.org
Fri Oct 15 02:03:00 UTC 2010

This draft comment is being circulated today (14-Oct) so that BC members will have 14 days to review, revise, and consider approval before the ICANN deadline of 28-Oct-2010.

The attached comment was drafted by Phil Corwin and was polished for submission by Mike Rodenbaugh.  Phil’s original note is shown at the bottom of this email, and contains some contextual material that may be helpful in your consideration of this draft.

This draft comment is in response to ICANN’s proposal to recognize a new domain name dispute provider.   For background on this proposal, see below, or at http://icann.org/en/public-comment/#acdr-proposal

Explanation/Background: ICANN has received a proposal from the Arab Center for Domain Name Dispute Resolution (ACDR) to be recognized as one of the official dispute resolution providers under the UDRP. The proposal was submitted pursuant to the process specified at http://www.icann.org/en/dndr/udrp/provider-approval-process.htm.

The ACDR is jointly established by the Arab Intellectual Property Mediation and Arbitration Society (AIPMAS) and the Arab Society for Intellectual Property (ASIP), with headquarters in Amman, Jordan and additional offices in other Arab Countries. Both the AIPMAS (established in 1987) and ASIP promote the activities of the Arab Center of Mediation and Arbitration, established in 2003, active in resolving conflicts related to intellectual property through international arbitrators. If approved, the ACDR would be the first Approved UDRP Dispute Resolution Service Provider headquartered in an Arab state.

At its 5 August 2010 meeting, the Board approved staff’s recommendation to publish the ACDR proposal for a public comment for a period of not less than 30 days.

Upon completion of the public comment period, ICANN staff will analyze the comments received and evaluate further recommendations to the Board on proceeding with the ACDR proposal.

The proposal and relevant annexures are at:
ACDR Proposal [PDF, 156 KB]
Annex 1 – ACDR Initial List of Panelists [PDF, 176 KB]
Annex 2 – ACDR Screening Process [PDF, 8 KB]
Annex 3 – ACDR Supplemental Rules [PDF, 100 KB]

----- Forwarded Message
From: Phil Corwin <pcorwin at butera-andrews.com>
Date: Thu, 14 Oct 2010 14:54:47 +0000
To: Marilyn Cade <marilynscade at hotmail.com>, bcprivate <bcprivate at bizconst.org>

Thanks to you, Steve, Sarah, Ron, Mikey, Chris and everyone else who put in place and participated in Tuesday's meeting of the Business Constituency. It was very worthwhile and hopefully will be an annual event.

During the policy portion of the meeting I noted that there is a pending request for comment regarding the application of the Arab Center for Domain Name Dispute Resolution (ACDR) to become a certified UDRP arbitration provider. ACDR is located in Amman, Jordan; The comment period closes on October 28th.

Steve invited me to provide further details, and this e-mail takes up that offer. I don't yet have an ICA comment letter to share that has been approved by the ICA Board, but I can provide this background --

I noted that the ICA intended to oppose approval of this application at this time on the grounds that no new UDRP providers should be accredited until ICANN implements a standard contract with all accredited providers or finds some other mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities.

Let me make clear that ICA's opposition will not be based in any way on the fact that this particular applicant is "Arab" and is located in the developing world. There were recent reports that an Indian organization is contemplating a similar application, and it may yet do so -- and ICA would take the same position in regard to them -- as we would in regard to any applicant from the US, EU, or any other part of the developed world. Nor are we  necessarily alleging that ACDR or its proposed panelists are lacking adequate professional credentials (we are still reviewing all of their supporting documents). That said, future UDRP providers are likely to be located in jurisdictions that have different local legal cultures, and this make it even more important to have a standardized governing document to keep the "uniform" in UDRP.

The problem is this -- it makes absolutely no sense to require that domains be registered or renewed via ICANN-accredited registrars who are under a standard contract (the RAA) but then provide that you can have your domain transferred away through a process administered by an organization that has been granted this power by ICANN -- yet is under no contract that defines its practices and procedures, is not subject to any regular or standardized review by ICANN, and for which ICANN's only disciplinary tool is accreditation revocation (so extreme a sanction that it is unlikely to ever be used).

I would think that everyone in the Business Constituency would understand the importance of a contractual relationship that defines and constrains this grant of power, and provides flexible and effective enforcement mechanisms, because that delegated power can extinguish substantial monetary investment and goodwill in a domain. Granting this kind of power absent any restraints is not an accountable practice.

As I noted yesterday, this is not just a domain investor/developer issue. We appear to be transitioning from a DNS that featured an effective duopoly of UDRP providers (WIPO and NAF) and in which all significant gTLDs were based in the developed world -- to one in which the majority of gTLDs may well be headquartered in nontraditional jurisdictions. Business interests may well be investing substantial amounts in these new gTLDs, for both defensive and new branding purposes. In this type of environment it is even more important that a proliferating cast of UDRP providers be subject to uniform and enforceable responsibilities, as that is the only means of assuring that UDRP decisions are consistent within and among UDRP providers, and that the UDRP remains an expedited and lower cost means of addressing cybersquatting.

Let me conclude by noting that this issue of whether UDRP providers should be under standard contract with ICANN is almost entirely separable from the question of whether the UDRP evaluation standards for determining the existence of cybersquatting should be reformed. That latter issue is a more complicated matter, and ICA recently suggested to ICANN that it should undertake an expert and impartial study contrasting trends in Internet trademark law decisions in major jurisdictions with trends in UDRP practice in order to provide a common foundation of information to inform any broader UDRP reform effort. There is no need to debate the substantive elements of the UDRP in order to address the fundamental issue of whether UDRP providers should be under standardized contract.

 I realize that it is difficult for the BC to reach consensus or act quickly. But I would ask fellow members to start thinking about this issue of whether you want  expanded ranks of UDRP providers to be able to decide disputes involving your domains registered in hundreds of new gTLDs located in multiple national jurisdictions without being under contract in that role.

 If the BC is unable to oppose this particular application I would at least hope we could achieve a consensus statement expressing concern about the lack of a contractual relationship between these providers and ICANN.

Thanks to my fellow members for taking this under advisement -- and thanks again to all who contributed to yesterday's event.
Regards to all,


Philip S. Corwin
Butera & Andrews
Washington, DC 20004
202-347-6875 (office)
202-347-6876 (fax)
202-255-6172 (cell)
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