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Thousands of domain name disputes have been resolved in less than two years under the Uniform Domain Name Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names and Numbers (ICANN). This alternative dispute resolution process has been hailed as a model to be replicated for other types of Internet legal disputes, given its speed, low cost, and international scope. However, a recent study reveals some apparent inequitable results resulting from the composition of arbitrator panels in domain name disputes. DEFINING THE PROBLEM In his study, “Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP,” Professor Michael Geist of the University of Ottawa notes that while ICANN at the outset accredited three arbitration providers in the hope of providing a competitive environment among such providers, there was concern that domain name complainants would engage in “forum shopping” by seeking out arbitration providers who would be most likely to rule in their favor. The study concludes that this concern was borne out as the two providers with the most favorable outcomes for complainants took over the dominant share of the domain name dispute caseload. To drive this point home, the study shows that the World Intellectual Property Organization (WIPO) and the National Arbitration Forum (NAF), the perceived complainant-friendly providers, received 183 and 96 new cases respectively in February 2001, whereas eResolution, the provider not regarded as tilting toward complainants, only received three new cases in that month. The study reveals that perception may actually comport with reality when it comes to the pro-complainant leanings of WIPO and NAF. According to the study, complainants win 82 percent of the time with WIPO, 82.9 percent of the time with NAF, whereas they win only 63.4 percent of the time with eResolution. Because a successful case outcome is what is most important to complainants, WIPO and NAF have received the vast dominant share of the UDRP domain name dispute cases. Indeed, the study shows that WIPO has gained 58 percent of the caseload, with NAF receiving 34 percent of the cases, while eResolution only has picked up 7 percent of the caseload. Professor Geist’s study does not draw the conclusion that WIPO and NAF arbitrators simply are more biased in favor of complainants than are eResolution arbitrators. Rather, his study concludes that the most determining factor pushing the odds in favor of a complainant or not has to do with whether a given arbitration will be decided by a single arbitrator or a multiple arbiter panel. The point is that “influence over panel composition is likely the most important controlling factor in determining case outcomes.” According to the data, when providers control who decides a case, which happens for all single panel cases, complainants win over 83 percent of the time. However, when there is less provider control, which occurs in three-member panel disputes because both the complainant and respondent pick one of the arbitrators and have some influence over who is the third arbitrator, the winning percentage of the complainant drops to 60 percent. FIXING THE PROBLEM In addition to other recommendations, Professor Geist argues principally in favor of mandatory three-member panels for domain name disputes decided under the UDRP. By putting in place such panels for all disputes, most provider influence over arbiter selection would be removed and there would be the added benefit of ensuring “better quality decisions by forcing panelists to justify their reasoning to their colleagues on the panel.” According to Professor Geist, moving away from single-member panels in some cases to three-member panels in all cases should not be viewed as shifting the balance away from complainants toward domain name registrants, but rather “as shifting the balance toward greater fairness.” Professor Geist acknowledges that the requirement of three-member panels would double the cost of UDRP actions, but the cost still would remain low when compared to traditional litigation. There will be a review very soon of the UDRP by the Domain Name Supporting Organization (DNSO) Names Council, with the results then to be presented to the ICANN board. Hopefully, Professor’s Geist’s study and its fair three-member panel recommendation will be considered. Still, at some level there could be resistance urged by those acting on behalf of complainants, as complainants do better and spend less on single-member panels. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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