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Buenos Aires, October 15th, 1997
Dear Sirs,
Please find as attachment a comment on the current version of the
Guidelines, with a proposal to delete paragraph 7 (f), that enables a
Panel - through a very inconvenient kind of determination - not to decide
in the substance of the dispute.
Any feed-back by e-mail or fax will be most welcome.
Roberto Bianchi
Fax 541-3250838
25 de Mayo 332, piso 8
1002 Buenos Aires
Agrentina
Sincerely
Roberto
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I. Proposal for Deletion of Paragraph 7 (f), first sentence, of the Second Revised Substantial Concerning ACPs
1. Paragraph 7(f), first sentence, reads:
"ACPs may make the following determinations in the context of a challenge: [...] (f) A determination that the conflict is not appropriate for ACP procedures. Such a determination could be made, for example, in a proceeding which involves conflicting right
s that are relatively balanced".
I find such a determination highly inconvenient, at least for the example given in the Substantial Guidelines ("for example, in a proceeding which involves conflicting rights that are relatively balanced"). The reasons for this opinion are following:
2. ACP procedures should address the need to provide certainty in respect of the inclusion, ownership and permanence of a domain name on the Registries of the Internet. As a result of an ACP proceeding the domain name either will be kept by its holder, or
will be transferred to the challenger, or will be excluded from one, several or all gTLDs.
The most reasonable justification for the Internet Community to create ACP procedures is to satisfy a general expectation that, should a conflict about a domain name arise, such a conflict will be dealt with, duly processed and resolved by means of an ACP
determination. Besides that, Article 52 of the Draft WIPO ACP Rules dictates that the Panel shall decide the substance of the challenge, etc.
Now, if an ACP makes a determination that a certain conflict is not appropriate for ACP procedures, this not only equals to an acceptance of technical impotence to decide on the substance, but also creates uncertainty for the challenger, the domain name h
older and for the Internet Community at large.
3. That the rights of the challenger and the domain name holder are "relatively balanced" could mean that the challenger has not succeeded in making her own rights prevail over the domain name holder's rights, and viceversa. Should that be the case there
is no reason to provide for such a kind of determination because the situation is precisely included in paragraph 7(e).
According to paragraph 10, the first-come first-served principle is the basic rule for allocation of domain names in the gTLDs. If after a thorough examination of all arguments the Panel feels that the parties' rights in the alphanumeric chain seem to be
"relatively balanced", he or she should make the basic principle prevail.
If the word "basic" is to have any legally relevant meaning, then a "basic principle" should be able to work as a "default" principle, that is, a principle that if applied as ultima ratio is apt to end with a situation of inconclusiveness, that is of (see
mingly) relative balance. Quite another question is which principle the Internet Community wishes to grant such a status to. In fact we could have quite another basic principle for the allocation of domain names, but that is out of the scope of this comme
nt.
4. ACPs' jurisdiction is accepted by the parties, but they can always - pending the proceeding - agree to refer the dispute to other ADR means. They can also ask a court to decide in the dispute not only where their rights are "relatively balanced", but a
lso when the Panel has already made a determination for exclusion, transfer, or that a sufficient showing has not been made to justify exclusion or transfer of the domain name.
According paragraph 60, a Panel's determination can be appealed. No other cause for uncertainty should be considered to maintain uncertainty on how the issued is to be decided.
5. Attention should be given to the fact that in order to decide in the substance of the dispute, the Panel must consider not only the rights of the parties, but also the interests of the domain name holder - see paragraph 19 ( c) - and the potential impa
ct of some facts on the domain name holder and the challenger - see paragraph 33 (g) - among other factors. It is extremely unlikely, if not impossible, that if all relevant factors are considered a situation of (perceived) "relative balance" could ever p
ersist.
6. From the point of view of convenience, I think inadequate and even dangerous for the Substantial Guidelines to provide the Panel with an occasion where he could declare himself unable to make a sound determination. Voluntary resort to ACPs could be imp
aired, and public confidence in the system could be diminished from the very beginning.
7. Proposal. On the grounds expressed, I propose to delete paragraph 7 (f), first sentence.
II. Proposal for Deletion of Paragraph 7 (f), second sentence, of the Second Revised Substantial Guidelines Concerning ACPs, and Inclusion of a New Paragraph in the Draft WIPO ACP Rules.
8. Paragraph 7 (f), second sentence, reads:
"In such a proceeding, an ACP may recommend that the dispute be submitted to another form of dispute resolution, including but not limited to mediation and arbitration, or to litigation before a national or regional court."
I believe this recommendation could be seen as useless, as it merely expresses the opinion of a body from which no decision could be obtained, even if the parties have submitted evidence and arguments to support their views. In the best of cases such an o
pinion has the same value as any other opinion. The Panels have been created not to issue opinions, but to contribute to certainty in the Internet domain name system, by means of making appropriate determinations.
It should be noted that, as it stands, the recommendation is of a procedural - non substantial - nature, and reflects similar existing rules in several modern civil procedure laws.
9. Now, ACP procedures are indeed a part of a whole system of conflict resolution. In fact, Article 57 (a) and ( c ) of the Draft WIPO ACP Rules contemplates the possibility of the termination of the proceedings through settlement and record of the settl
ement in the form of a consent determination. So it seems only natural that an ACP or the WIPO Center itself informs at an early stage of the proceeding all parties that other ADR means, such as mediation and arbitration, exist and are available for them
to deal with the dispute, and asks them to declare if they wish to participate in such procedures under WIPO rules. That is even obvious since WIPO administers mediation and arbitration proceedings.
10. Proposal.
a) To delete paragraph 7 (f), second sentence, being of a procedural nature, and
b) To include some variation of the following text in the appropriate section of the Draft WIPO ACP Rules:
"Immediately after receiving the request for challenge /and the answer to the request for challenge/ the Panel/the WIPO Center/ shall inform the parties that they can undertake the resolution of the existing conflict through other procedures including, bu
t not limited to, mediation or arbitration under the WIPO Rules for Mediation and Arbitration. The Panel /the WIPO Center/ shall direct the parties to the information posted by the WIPO Center on the Internet. The Panel /the WIPO Center/ shall declare the
closure of the proceeding where all parties inform the Panel /the Center/ that they prefer to undertake any one of said ADR procedures."
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