Never too late: ICANN covets stricter controls over the Supplemental Rules of the UDRP Providers
In its August Board Meeting, ICANN indicated its willingness to proceed to a more streamlined process regarding the supplemental rules that are in place by the various UDRP dispute resolution providers. This is great news and, if ICANN approaches this issue with the willingness to monitor the way UDRP providers offer their services, we might actually be in the process of fixing one of the main flaws of the UDRP.
Within the UDRP framework, “Supplemental Rules” refer to the ability of dispute resolution providers to structure certain aspects of the UDRP’s procedural process independently of ICANN and one another and to design procedures that allow a more competitive dispute resolution regime. Historically, ICANN has only insisted that the centres follow the same rules for the resolution of domain name disputes – the Uniform Domain Name Dispute Resolution Policy and especially its paragraph 4 – as well as some default guidelines that deal with the general structure of the system, e.g. composition of panels, deadlines, language of the proceedings, etc. At the outset, this provided UDRP centres with a certain degree of freedom and flexibility and was intended to provide incentives for both parties, flourishing competition, whilst allowing UDRP providers to distinguish themselves from one another.
However, a lack of proper monitoring on behalf of ICANN combined with the business and financial aspirations of these centres has resulted in centres putting in place and enforcing supplemental rules that have contributed greatly to forum shopping, aiming to please only one of the parties to the detriment of procedural justice.
In my book, “The Current State of Domain Name Regulation: domain names as second-class citizens in a mark-dominated world”, I have argued that the way Supplemental Rules have been integrated within the UDRP system have resulted in a great amount of inconsistency, especially when the UDRP model is meant to be uniform. This is highly problematic as UDRP centres use their supplemental rules to provide false incentives and take advantage of the limited rights the UDRP affords the Respondent. For example, various centers have realized the tight deadlines respondents have to answer to the complaint and have addressed it in a way that places them in an even more obvious disadvantage. The NAF Supplemental Rules, for instance, allow respondents to submit their response after the required twenty days deadline, only if the latter request so in writing and pay a $100 fee, within, however, the twenty day deadline. (Extension for Filing a Response: (a) Paragraph 5(d) of the Rules provides that the Respondent may request additional time to submit a Response, or may be given additional time if the parties stipulate to an extension and NAF approves. Any request by the Respondent for an extension or any joint request by the parties for an extension shall: […](v) be accompanied by an extension fee of $100.)
On another level, this inconsistency in the Supplemental Rules of UDRP providers has an impact on how centers interpret issues concerning the impartiality and independence of their panelists. Each of the centers is allowed to produce its own rules and set its own individual parameters of panelist independence. For instance, WIPO has not produced any substantive rules for party challenges; NAF accepts challenges only after the panelist has been appointed and only within a small time frame; The Asian Domain Name Dispute Resolution Centre allows challenges any time during the procedure but before the rendering of the decision, whilst the newly appointed Czech Arbitration Court does not provide to the parties any guidelines concerning the challenge of panels.
These are just two manifestations of the detrimental effect Supplemental Rules have upon the UDRP. We need to accept that affording the UDRP providers such amount of freedom has produced problematic results and has contributed to the general procedural unfairness the UDRP is currently facing. So, it is indeed a welcoming step to see that the ICANN Board is willing to discuss the role of Supplemental Rules in the UDRP and to see the ICANN staff wanting to impose tighter controls over these rules and their presence in the UDRP.
I can only hope that this is the first step towards slowing down the freedom of the UDRP providers, addressing the issues of inconsistency, eliminating forum shopping and opening the road for a substantive review of the UDRP.
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