[Gnso-igo-ingo-crp] The Dangers of Option #2: lack of multiple levels of appeal

[George Kirikos]

Hi folks,

During one of the conference calls a few weeks ago, I mentioned the
Moobitalk case in the French courts, which went through *multiple*
levels of the courts, before the correct decision was achieved by the
domain name owner, see:

http://www.lexology.com/library/detail.aspx?g=5899d5f9-3bbc-416e-a9a5-7233a147b62c
http://www.dreyfus.fr/en/marques/france-a-domain-name-transferred-by-udrp-decision-was-finally-returned-to-its-initial-owner/

Similarly, the important Tucows v Renner case went through multiple
levels of the courts, going to the Ontario Court of Appeal:

https://www.canlii.org/en/on/onca/doc/2011/2011onca548/2011onca548.html

Furthermore, Renner even appealed to the Supreme Court of Canada,
although their application for leave to appeal to the Supreme Court
was denied, see:

https://www.canlii.org/en/ca/scc-l/doc/2012/2012canlii28261/2012canlii28261.html

fully exercising their rights to attempt to appeal to the highest
possible court in the land.

Today I stumbled upon another domain dispute in the German courts:

http://www.lexology.com/library/detail.aspx?g=55be88b3-76bd-41f8-ac0c-ea55220bb330

while not involving a UDRP, apparently (the decision appears to have
been anonymized, as the domain name isn't listed, and the parties
aren't identified),  it too went through multiple levels of the courts
(the Frankfurt Higher Regional Court, after starting in the Frankfurt
Regional Court).

These cases all demonstrate the inherent dangers of Option #2, which
only permits the binding arbitration itself, and no further appeals.

One of the protections that ensures due process and holds judges
accountable is the ability to appeal their judgements. A judge or
arbitrator or panelist whose decisions cannot be appealed is
potentially far more dangerous, prone to reckless and incorrect
decisions, because their level of accountability is lower (thus the
higher level of scrutiny for Supreme Court judges in most nations,
combined with the "dilution" of individual power by having 9 judges in
total at the Supreme Court of Canada or the Supreme Court of the
United States. Given the desire of most active judges to advance in
their careers, to be appointed to a higher court, a history of
overturned decisions on appeal does not bode well for them, and acts
as a further incentive to get things right.

These dangers aren't present with Option #1.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/