Re: [ga] Santiago DNSO GA Schedule - Is a full day needed ?

[Michael Froomkin <froomkin@law.miami.edu>]

This is a travesty.  


This text is far in excess of what WIPO suggested.  It trespasses on the
work of other working groups.  It is substantively unfair, and makes not
even a mention of fairness or justice.

I strenuously object.

> 
> The DNSO recommends the adoption and implementation of a uniform  Dispute
> Resolution Policy.  Such  DRP should be uniform accross current gTLDs,
> approved by ICANN and implemented on a gTLD-wide level in a uniform way.
> 
> Uniformity should affect both material or substantive rules as well as

Substantive rules have no place in this scheme.

> procedural rules with an effect on substantive rights of the parties. Some

what is a "procedural rule with an effect on substantive rights"?  Would
that be - "better read your email, because if you don't answer in 10
days you lose your domain name"?

> minor, administrative, differences could be implemented in procedures followed
> by different uDRP Service Providers. In this regard we recommend that ICANN

This is a violation of competition law (anti-trust law).

> establishes an accreditation process for DRP Service providers based on
> objective criteria, and that all accredited DRP Service Providers should be
> incorporated by the Registration Authorities in their Domain Name Registration
> Agreeemnts with registrants.

I don't know what the above means.  If it means that ICANN should have a
role in picking arbitral authorities it is objectionable on the grounds
that ICANN has no relevant competence.

> 
> +++
> 
> This uDRP is to be viewed as an alternative to litigation, as a fast,
> inexpensive and Internet-friendly alternative (at least in relative terms) to
> wordlwide legal systems and jurisdictions.

What a nice sentiment.  In fact of course, it should be viewed for what
it actually is, not for what it proponents hope to sell it as.
I have explained in great detail how the proposal by WIPO will harm the
interests of registrants.  So far there is no working group with the
charge of fixing these problems.  


> 
> The main goals of such a uDRP would be increasing legal certainty, providing a

Would asking that justice and fairness be among the main goals be too
radical a request?

> solution in cases where multijurisdictional conflicts prevent actuall
> court-based dispute resolution and prevent forum shopping.  In this regard is
> it viewes as an altrnative, not a substitute for Court litigation, which
> should remain open to the parties.

But in fact, court litigation is not open to the losing registrant in a
vast % of cases. What is the point of repeating this misleading
statement all the time?  Except to mislead people?

> 
> Even if the DNSO remains open to consider gTLD-specific DRPs, or variations
> thereof for future for certain new gTLDs in light of possible specific uses,
> characteristics or charters, we recommned a uniform DRP accross the curent
> three gTLDs regrding both their undifferentiated use and the nature of the DRP
> being recommended. Moreover, such a uDRP should be more than a series of
> similar or even identical policies proposed by each registrar, a gTLD-wide
> (or, in the current situation, a registry.wide) DRP approved by ICANN.
> 
> Neither registries nor registrars should be involved in actual administration
> of such policy. In this regard we beleive that ICANN should accredit DRP
> Service providers among specialized dispute-resolution insitutions, accrding

This is unacceptable and unwarranted and does not represent a consensus
of the working group.  I most strenuously object.  
I further submit that any procedure which claims this report is the
result of a consensus of the working group in which I participated in
seriously flawed.

> to a set of objective cirteria. Both material, substantive, rules and the
> procedural ones that affect substantive rights of the parties (deadlines;
> notifications; etc) should be uniform. But some room could be open for
> differentiation in some procedural rules such as language; fees; and other
> administrative aspects.


Anti-trust again.

-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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