Back in September 2010 ICANN invited public comment on the proposal of the Arab Center for Dispute Resolution (ACDR) of Amman, Jordan to become a UDRP arbitration provider. Most of the comments opposed approval or requested changes and clarifications. Nothing more was heard of the application – until it showed up on the Consent Agenda for the ICANN Board meeting scheduled for February 28th!
ICA, which opposed the original application on policy and substantive grounds, thought that handling the ACDR proposal this way violated ICANN’s oft-stated commitment to transparency and accountability. So we quickly dispatched a letter to ICANN’s Board Chairman and President/CEO requesting that the Board:
• Defer action on this matter until at least its next scheduled meeting.
• Publish the pending ACDR proposal for community review and comment.
We think those are pretty reasonable requests and hope the Board agrees. UDRP providers have the power to transfer or cancel domains, and their accreditation should meet very high standards.
ICA also believes that the likely requests of entities around the globe to become UDRP providers over the next few years, in the context of the growing globalization of Internet use and the coming introduction of IDN gTLDs, makes it even more urgent that ICANN establish a standard enforceable agreement with all UDRP providers. After all, the UDRP won’t be “uniform” if it is administered in different ways by multiple providers. That could also set off a race to the bottom if new providers seek to encourage forum shopping by the complainants who decide where to file UDRPs.
As a member of ICANN’s Business Constituency (BC), ICA also requested that the BC retransmit its own 2010 comment letter opposing the accreditation of the ACDR or any other new UDRP providers “until ICANN implements a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities.” We’re happy to report that the BC has just taken that action in a timely fashion so that the Board is informed of its view prior to its meeting. The cover note accompanying the BC’s 2010 comment states:
Dear Chairman Crocker and President/CEO Chehade
Comment from BC on recognizing new UDRP providers
It has come to our attention that the Board Consent agenda includes consideration of a proposal for a new UDRP provider.
This was a surprise to many, as there had been no intervening communications with the broader community since 2010. There is therefore a lack of information regarding the proposal and how earlier concerns have been addressed by ICANN.
I am retransmitting the position of the BC regarding recognizing new UDRP providers, which was developed and posted in October 2010, in response to an ICANN proposal to recognize new domain name dispute providers.
As described in the Statement, the BC believes that ICANN should implement a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities.
Transmitted by the BC Chair, on behalf of the Business Constituency
February 27, 2013
ICA will continue to press for development of effective means to ensure that the UDRP is administered in a uniform manner by all accredited arbitration providers. The parties to UDRP proceedings – especially domain registrants – deserve no less.
The ICA letter follows:
VIRTUALAW LLC
Philip S. Corwin, Founding Principal
1155 F Street, NW Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
psc@vlaw-dc.com
February 26, 2013
By E-Mail
Mr. Steve Crocker, Chairman of the Board
Mr. Fadi Chehade, President & CEO
Internet Corporation for Assigned Names and Numbers
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094-2536
Re: Board Consideration of Arab Center for Dispute Resolution’s Proposal to Serve as UDRP Provider
Dear Mr. Crocker and Mr. Chehade:
I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.
ICA is also a member of ICANN’s Business Constituency and I participate on ICA’s behalf in the BC’s activities as well as in ICANN’s public comment, working group, and related processes for policy development and implementation.
ICA has become aware that the ICANN Board of Directors is to consider the application of the Arab Center for Dispute Resolution (ACDR) to become an accredited provider of UDRP arbitration services at its Special Meeting scheduled for February 28, 2013 (https://www.icann.org/en/groups/board/documents/agenda-28feb13-en.htm). As this matter is on the Consent Agenda we presume that the Board is prepared to approve this accreditation.
The ICA hereby requests that the Board:
- · Defer action on this matter until at least its next scheduled meeting.
- · Publish the pending ACDR proposal for community review and comment.
Our reasons for this request are:
- · The ACDR proposal was submitted for community comment nearly two and a half years ago, on September 28, 2010 (http://www.icann.org/en/news/announcements/announcement-28sep10-en.htm). So far as we are aware (and we have searched the ICANN website in this regard) there have been no further official statements by ICANN on this matter until its appearance on the Consent Agenda.
- · The majority of comments received on the ACDR application either opposed it or requested substantial revisions and clarifications. ICA’s comment letter opposed any new accreditations of UDRP providers and also cited material deficiencies in the ACDR application (http://forum.icann.org/lists/acdr-proposal/msg00005.html). The Summary of the statement filed by the Business Constituency stated “The Business Constituency (BC) cannot support approval of this or any other UDRP accreditation application at this time on the grounds that no new UDRP providers should be accredited until ICANN implements a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities.” (http://forum.icann.org/lists/acdr-proposal/msg00004.html). And the comment of the IP Constituency noted that “any enthusiasm for the ACDR’s proposal must be tempered by the desire to ensure a predictable and equitable system of domain name dispute resolution – as opposed to any profit-driven “race to the bottom” between UDRP providers”, and listed numerous revisions and suggestions that it wished to see made to the ACDR proposal. (http://forum.icann.org/lists/acdr-proposal/msg00006.html)
- · The ICANN staff Summary and Analysis of the comments received stated:
The commenters were of varied opinions on the ACDR’s proposal: Three commenters (George Kirikos, the BC and the ICA) were expressly against the ACDR proposal. The IPC noted its conditional approval subject to incorporation of suggested changes, and only one commenter (Alramahi) submitted unqualified support for the ACDR proposal.
It also noted:
Some areas identified by the IPC and ICA include:
(i) Provision of more detail on track record in handling alternative dispute resolution proceedings;
(ii) A more precise statement regarding the case load administrative capacity that the ACDR anticipates handling;
(iii) Better documentation regarding the creation of training materials;
(iv) Revision of specific terms in the supplemental rules to better align with the UDRP process;
(v) Revision to the ACDR’s fee structure; and
(vi) Release of confidential internal operating procedures.
ICANN is providing the ACDR with a copy of this summary and analysis so that the ACDR may determine how to respond and whether it wishes to revise any portion of its proposal. When a revised proposal is received, the proposal will be reviewed to determine if further public comment is advisable prior to presentation to the Board for consideration. Further comment may not be necessary, for example, if the ACDR elects to not alter its fee schedule, as the UDRP allows providers to set their own fees.
Separate from the ACDR proposal, ICANN has been undertaking a process to review its relationships with UDRP providers, and that review is ongoing. (Emphasis added)
As noted above, nearly two and a half years have passed since the ACDR proposal was put out for public comment. The majority of comments opposed approval or requested substantial revision and additional information. Now the ACDR proposal has suddenly appeared on the Board’s Consent Agenda with no information presented to the ICANN community as to whether any modifications have been made to the original ACDR proposal, and whether any additional clarifying information has been submitted.
Under these circumstances, proceeding with the ACDR approval at the Board’s February 28th meeting would not be consistent with ICANN’s commitment to transparency and accountability. That is why we are requesting a deferral of Board action on this matter as well as publication of the pending proposal of the ACDR for community review and comment.
ICA wishes to emphasize that we understand the potential benefits of additional regional UDRP arbitration entities as global Internet use continues to grow, and have no quarrel with the appointment of such additional providers — once a standard agreement is in place to assure that procedural and substantive implementation of the Uniform Dispute Resolution Policy is in fact uniform no matter which arbitrator is involved. We have long voiced support for overall UDRP reform of at least a procedural nature to better ensure uniform application of this critically important ICANN policy.
We also note that while the staff Summary and Analysis refers to an ongoing review process to review ICANN’s relationships with UDRP providers we know of no information being provided to the community in regard to the status or results of such a review. If such a review has indeed been undertaken the community should be informed of its status and all relevant information pertaining to it. If such a review process has been halted or remains incomplete then we suggest it be accorded a high priority for near-term completion.
Thank you for considering our views in regard to this important pending matter before the Board. We ask that this letter be shared with all other members of the ICANN Board.
Sincerely,
Philip S. Corwin
Counsel, Internet Commerce Association