Modelling a judiciary on a domain dispute resolution model?

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Diderot Mirabeau
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Modelling a judiciary on a domain dispute resolution model?

Post by Diderot Mirabeau »

In light of Salzie's excellent heads up on the article in the ABA Journal I was moved to give the question of the design of our legal system some further thought.

It occurred to me that the bodies set up to resolve domain name disputes might very well have a lot in common with what we would like to see in a court system. I am thinking here especially of the type and proportion of disputes (small, and the environment under which parties to the dispute and actors involved in its resolution must be expected to operate.

There are quite a number of different setups and procedural guidelines for the bodies involved in settling these disputes but in general they are very short - typically around 5 pages - and involve a panel of between 1 - 5 persons hearing a case typically by way of written submissions and publishing their verdicts online.

I can think of two references that it might be worthwhile to point to in extension of this: Namely the generic ICANN guidelines for domain dispute resolution bodies and the national board responsible for arbitrating the disputes in my RL geography - Denmark. Undoubtedly, other forum users can point to the relevant websites for their corresponding dispute resolution boards. To begin with I'd like to solicit your opinions on whether the level of ambition and general approach to procedure for our future court system might be compatible with the inspiration one can gather from the domain dispute resolution boards?

References:
[url=http://www.icann.org/dndr/udrp/uniform- ... m:x8jbdnyx]ICANN Rules for Uniform Domain Name Dispute Resolution Policy[/url:x8jbdnyx]
[url=http://www.dk-hostmaster.dk/index.php?id=128:x8jbdnyx]English description of Complaints board for .dk Domain Names[/url:x8jbdnyx]
[url=http://www.domaeneklager.dk:x8jbdnyx]Danish website for the Complaints board along with a complete collection of decisions available as PDF documents[/url:x8jbdnyx]

The UK equivalent is called nominet. Their procedural guidelines boil down to 7 pages of text and can be found [url=http://www.nominet.org.uk/disputes/drs/ ... /:x8jbdnyx]here[/url:x8jbdnyx].

Some criticism has been raised against the ICANN guidelines notably the fact that they allow for the free choice between domain dispute resolution bodies (i.e. establishing a "market" for domain dispute resolution) and that in cases involving one man-panels there has been a consistent bias towards honouring the rights of trademark holders. I found a summary of the criticism on [url=http://www.theregister.co.uk/2001/08/21 ... /:x8jbdnyx]The Register[/url:x8jbdnyx].

I'll post more later when I have the time to summarise the main points of the domain dispute resolution procedure and analyse how this might actually work for us.

michelmanen
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Post by michelmanen »

Yes, I agree this is a good starting point. That being said, I do believe we must maintain the distinction between a voluntary, strightforward arbitration system and a more formal, compulsory court litigation system capable of scaling up as our needs / scope change. We can set both up and see how they work in parallel, and make changes as required in light of experience.

Alhough i am by no means advocating a wholesale re-enactment of the Judiciary Act and the Code of Procedure devised by Ash, I think a lot of good work went into both and we should draw from them whatever we think appropriate for our needs.

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