The ICA Forces ICANN To Issue A “Status Report on UDRP/URS Providers & Uniformity of Process”

ICANN issued a Status Report on UDRP Providers and Uniformity of Process, last night and the timing of it makes it look as a direct result of the criticism of Phil Corwin of the Internet Commerce Association (ICA) made public during the ICANN meeting that concluded on Thursday.

First for the report, then some comments will follow:

“”Issues relating to Uniform Domain Name Dispute Resolution Policy (“UDRP”) and uniformity of providers started to arise within ICANN in 2010. Commenters raised concerns regarding how ICANN can and should enforce uniformity among the approved UDRP providers. At that time, ICANN stated that it would undertake a review of its relationship with its UDRP providers, which it did. This memo is the culmination of that effort.

“”There are two documents that are required for universal, uniform operation of the UDRP. The first is the policy itself, at http://www.icann.org/en/dndr/udrp/policy.htm (“Policy”), setting out the scope of relief and the basis for mandatory administrative hearings that may be brought.

The second document set outs the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), at http://www.icann.org/en/dndr/udrp/uniform- rules.htm, which provide the baseline procedural requirements that must be followed in a UDRP proceeding, such as required notice to a respondent, time for filing a response, and standardization of a practice for appointing the administrative panel in every proceeding brought under the UDRP.

Each approved UDRP provider is responsible for maintaining its own set of supplemental rules, defined as “the rules adopted by the Provider administering a proceeding to supplement these Rules.

Supplemental Rules shall not be inconsistent with the Policy or these Rules and shall cover such topics as fees, word and page limits and guidelines, file size and format modalities, the means for communicating with the Provider and the Panel, and the form of cover sheets.” (Defined in the Rules, at http://www.icann.org/dndr/udrp/uniform-rules.htm.)

As part of the approval process, potential providers must provide ICANN with a copy of their proposed supplemental rules, which are reviewed to confirm that there is no conflict with the Rules and the Policy, and also to confirm that the potential provider has an understanding of the policy.

Contracting with UDRP Providers

One of the most common requests that ICANN has received regarding UDRP providers is to implement a contract across providers that will require uniformity in proceedings.

ICANN has carefully considered whether the introduction of contracts is feasible or useful in the scope of UDRP proceedings, and has determined that contracts would be a cumbersome tool to assert to reach the same outcome that exists today. Just as UDRP providers are approved by ICANN, ICANN can always revoke its approval if a provider is found to no longer meet the standards that supported its approval.

For example, if a UDRP provider is found to be acting in violation of the UDRP, or if the provider has Supplemental Rules that are in conflict with the UDRP and the Rules, and the UDRP provider failed to remedy that conflict, there is nothing in either of those situations that precludes ICANN from revoking approval.

Imposing a contractual relationship could actually make it more difficult for ICANN to take corrective action. Here, the UDRP and the Rules set forth all of the expected actions of the UDRP provider; a contract would only be repetitive in this case.

Although some have argued otherwise, the situation with the UDRP is different from the Uniform Rapid Suspension System (URS) that has been established for the New gTLD Program.

Unlike the UDRP, the URS is not based on a policy.

ICANN has used Memoranda of Understanding to govern the relationship with each of the selected URS providers, in which each of the URS providers agree to implement the URS services in accordance with the procedures laid out in the Applicant Guidebook, as they might be amended from time to time.

The URS providers also agree to maintain supplemental rules that “may not contravene or be inconsistent with the URS Procedure or URS Rules.” (See http://newgtlds.icann.org/en/applicants/urs for more information on URS providers.) These are the same requirements that UDRP providers are subject to, without a contractual relationship.

 

Forum Shopping and Provider Concerns

 

A frequent concerns raised regarding UDRP providers is the potential for “forum shopping,” or that UDRP complainants will seek out providers that they believe will provide a better result.

The provision of contracts, however, will not stop complainants from filing UDRP disputes with their preferred providers.

In fact, one of the expected benefits of the diversity of UDRP providers is to provide further choice to all who may invoke the UDRP, including issues of geography and language.

UDRP providers are expected to perform to the standards set forth in the UDRP.

So long as those standards are used, and the provider is adhering to the UDRP, the choice is appropriate to leave to a complainant as to which UDRP provider it wishes to use.

Many of the concerns raised about the uniformity of UDRP providers are based on the premise that there are UDRP providers today that act outside of the UDRP.

However, the few reports or complaints that ICANN has received regarding existing UDRP providers have not evidenced behavior that would require ICANN to consider whether there was a need to revoke its approval.

Of course, there is always the future possibility that an issue of non-compliance will arise that will require corrective action.

In recognition of that potential, ICANN commits that substantiated reports of UDRP provider non-compliance with the UDRP or the Rules will be investigated.

If the investigations uncover issues of UDRP provider non- compliance, ICANN will work with the affected UDRP provider to determine if the issue can be remedied. If the issue cannot be remedied, and the UDRP provider cannot – or refuses – to return to acting in conformity with the UDRP, ICANN will take action, which might include revocation of its approval of the UDRP provider, taking into account issues relating to the transferring or completion of pending matters before that provider.

 

Provider Approval Process

The work related to the approval of UDRP providers is not solely within the control of ICANN staff and Board.

At the time the UDRP was implemented, there was an indication that “The Generic Names Supporting Organization (GNSO) is currently undertaking a review of the UDRP, and will include the approval process for dispute-resolution providers as part of this review.” See http://www.icann.org/en/dndr/udrp/provider-approval-process.htm.

In the interim, 10 required elements for applications were set forth on that approval process page.

In 2003, the GNSO conducted a survey to prioritize issues relating to the UDRP, as seen in a UDRP Issue table, and raised the issue of “[s]hould standards for accrediting providers and panelists be promulgated?”.

This issue was ranked fourth in level of import, and there is no further mention of the issue available on the GNSO Issues page.

As a result, the Approval process listed as “provisional” in 2000 has remained in effect.

This issue was re-raised within the documentation for a policy development process regarding the UDRP that was before the GNSO Council in 2011, and could be included within the continuation of that PDP when the work is reinitiated after new gTLDs are delegated into the root.

Summary

UDRP providers are central to the maintenance of one of the policies that is most central to rights protection within gTLDs, the Uniform Domain Name Dispute Resolution

Policy. UDRP providers are expected to adhere to all portions of the policy – and it is important for ICANN to know if they are not doing so.

However, a contractual regime is not required for ICANN to have enforcement power over the UDRP providers; the established UDRP and Rules set out the parameters of the UDRP providers’ conduct, and they may not act in contravention of the Policy or Rules.

While there has not been, to date, a need for ICANN to revoke its approval of any UDRP provider, the concerns raised in the community make clear that ICANN has to be prepared for this potential.

As a result, ICANN is committed to thoroughly investigate complaints of non-compliance and take corrective action as appropriate.

 

So ICANN is saying they don’t have contracts with UDRP or URS providers nor do they need one.

Seems like process which for UDRP is being used thousands of times a year to take property away from property holders should be subject to some contractual relationship and the upcoming URS which is much scarier for domain holders should require a contract between ICANN and the providers.

Why is ICANN making new gTLD registries sign contracts, why not just refer them to a list of guidelines with the thought that there registry could be suspended if they violate the terms of the registry guidelines?

For an organization that pushes a LOT of paper, its about the only issue involving ICANN that is not heavily contracted.

On the issue of provider Approval process ICANN refers to two documents a GNSO survery taken 10 years ago and an “approval; proceess:” which is 13 years old.

Really?

Since then there have been tens of thousands of UDRP decisions and providers added and anyone that reads thedomains.com on a regular basis know there are bad decisions, overreaching panelist  and worse highly inconsistent decisions.

The inconsistent decisions is one of the major reasons fro forum shopping and several of the providers didn’t even exist 10 years ago when the last survey was taken

Maybe its time for a new survey guys.

 

 

Comments

  1. Nat Cohen says

    ICANN STAFF = CLUELESS

    The following paragraphs could only be written be someone who entirely misses the point about forum shopping:

    “In fact, one of the expected benefits of the diversity of UDRP providers is to provide further choice to all who may invoke the UDRP, including issues of geography and language.

    UDRP providers are expected to perform to the standards set forth in the UDRP.

    So long as those standards are used, and the provider is adhering to the UDRP, the choice is appropriate to leave to a complainant as to which UDRP provider it wishes to use.”

    The writer of the report is completely blind to the problem that there can be extreme bias exhibited by different forums and yet the forums can still be compliant with the standards set forth in the UDRP.

    The key issue that gives rise to Forum Shopping is that Bad Faith criteria are highly subjective and depend on the personal perspectives of the panelists.

    For instance, a forum can remain within the standards set by the UDRP and yet only appoint panelists who view owning domains as investments to be bad faith.

    One only has to look at the US Supreme Court to see that some of the top legal minds in the world can come to opposing conclusions on the same legal issue because of their different judicial philosophies.

    In the UDRP context, the numerous split decisions show that what matters most are the panelists that are chosen for a panel, not whether a UDRP provider is complying with UDRP standards.

    Giving the Complainant the option to pick the the UDRP forum, and then offering the Complainant an ever expanding number of UDRP forums to choose from is like setting a kid free in a candy store to pick his favorite treat. The Complainant will pick the forum where the Panelists are most likely to favor the Complainant’s arguments, and therefore the Complainant will have the best chance of winning.

    ICANN is blindly following a path that is maximizing the pro-Complainant bias in the UDRP.

  2. says

    Thanks, Mike and Nat, for staying on top of this issue. I wrote an open letter and challenge to the ICANN CEO at:

    http://gnso.icann.org/mailing-lists/archives/ga-201306/msg00011.html

    Let me put it into simpler terms. Suppose Fadi and I both like apple pie, and we want to split it fairly. We have a knife. What would be the “fair way” to divide the pie, to ensure each gets an even piece. One option is for Fadi to cut it, and Fadi to pick the piece. Obviously he would make one piece very large, the other small, and then he’d pick the larger piece. After you explore a few other options, you’d likely stumble upon the (somewhat obvious) optimal solution for fairness — namely, one person divides the pie, and the other person picks the piece. Clearly, the person dividing the pie would make both pieces the same size, if the other person gets to pick the piece.

    In the ICANN world, though, ICANN “sets the framework for providers” (i.e. compliance with the UDRP standard and rules), so it’s the one wielding the knife (supposedly dividing things to ensure fairness). But, then the one subject to the policy (i.e. domain registrants) aren’t given the opportunity to pick amongst the providers (who are all supposed to have met the standard), which is akin to picking the piece of pie they want. If ICANN was acting properly, all the providers would meet the standards, so they’d pretty much be the same, just like the pieces of the apple pie above. Instead, some third party complainant (who benefits if the piece of the pie is bigger for themselves) picks the piece they want. Thus we see the huge issue of forum shopping, where complainants, through ICANN ignoring obvious problems at providers, continue to see things shifted in their favour, while registrants get the short end of the stick (or smaller piece of the pie, an injustice).

    To go back to the apple pie analogy, it’s even worse, as ICANN takes the knife and instead of cutting the pie evenly, they simply take the knife and stab registrants repeatedly, leaving 100% of the pie for themselves.

  3. says

    Mike:

    I’d love to claim credit for the document’s issuance, but I spoke at the Public Forum mid-afternoon on the 18th and it was issued the next day — it has the look of something that gestated for more than 24 hours.

    Nonetheless, it’s clear that registrant rights issues are getting more attention from ICANN and that is good — as it is good that CEO Chehade recently stated that registrants are ICANN’s #1 customer. As I said on Thursday, we like the rhetoric but don’t perceive a matching reality.

    This is also a very significant document. For the first time ever, ICANN has gone on record that it does not believe that contracts with UDRP providers are warranted.

    While I appreciate the candor I vehemently disagree, and find it an astonishing statement from an organization that can only exercise power by contract. Also, as a top-down policy marker for the future, it prematurely prejudices the community’s discussion of UDRP reform, slated to begin 18 months after the first new gTLD is introduced (about Spring 2015) — because ICANN has now signaled it would likely oppose any community recommendation for any form of contractual relationship with UDRP providers.

    I just returned home six hours ago after a 25 hour return trip from Durban, so I will provide just some initial responses but suspect I may have more to say later—

    “ICANN has carefully considered whether the introduction of contracts is feasible or useful in the scope of UDRP proceedings, and has determined that contracts would be a cumbersome tool to assert to reach the same outcome that exists today.” – Since when has ICANN viewed contracts as “cumbersome tools”? This conversion must have occurred since the very recent issuance of the highly complex new RA and RAA Agreements. As for the assertion that contracts would only produce “the same outcome that exists today” – well, there are multiple parties who have strong issues with the UDRP situation that exists today. Perhaps contracts would result in beneficial new outcomes.
    Further, in my Public Forum dialogue with ICANN staff they asserted that the Memorandum of Understanding (MOU) with URS providers was the very contract that their May statement referenced. So if the MOU is a contract (albeit a minimal one – it’s shorter than my standard client retainer agreement) why did ICANN decide to burden URS providers with this “cumbersome tool” — and why shouldn’t the MOU sauce for the URS goose be ladled up for the UDRP gander?

    “Imposing a contractual relationship could actually make it more difficult for ICANN to take corrective action. Here, the UDRP and the Rules set forth all of the expected actions of the UDRP provider; a contract would only be repetitive in this case.” – In what possible way would a contractual relationship make it more difficult for ICANN to take “corrective action”? Actually, question number one should be what actual authority does ICANN have to take any corrective action against a UDRP provider without any writing (not even a 2-page MOU)? At present, its only available option is the “death penalty” sanction of deaccreditation of the provider, when a contract could provide it with an escalating series of sanctions tied to specific metrics, reporting requirements, and periodic compliance review. (Remember too that the 2007 Registerfly fiasco resulted in part from ICANN’s lack of registrar enforcement tools other than accreditation cancelation; an inflexibility that was altered in the subsequent RAA rewrite.)

    Finally, do the new, complex contracts called the RA and RAA make it more or less difficult for ICANN to take corrective actions against registries or registrars? From what I’ve read, the answer is that they have substantially enhanced ICANN’s enforcement authority. But if ICANN thinks these revised contracts make compliance enforcement more difficult, it should share that viewpoint.

    “Although some have argued otherwise, the situation with the UDRP is different from the Uniform Rapid Suspension System (URS) that has been established for the New gTLD Program.

    Unlike the UDRP, the URS is not based on a policy.

    ICANN has used Memoranda of Understanding to govern the relationship with each of the selected URS providers, in which each of the URS providers agree to implement the URS services in accordance with the procedures laid out in the Applicant Guidebook, as they might be amended from time to time.”

    With all due respect, I don’t buy the notion that the situation with the URS, a supplement to the UDRP, is fundamentally different – especially when the two URS providers selected so far already perform UDRP arbitration. Can ICANN further explain how its relationship with NAF and ADNDRC is of a different character for UDRP and URS purposes?

    As for the assertion that the distinction is justified because UDRP is based on a policy but the new URS is not – well this is just an astonishing and demonstrably false statement. Did not the Board Governance Committee recently affirm that the staff decision to adopt “trademark-plus-fifty” for the Trademark Clearinghouse was proper because that was an implementation of a general POLICY underlying the Guidebook to protect trademark rights. Well the URS is another implementation of that exact same right protection POLICY. In fact, if the URS was not based upon a POLICY underlying the new gTLD program then it would have no legitimacy.

    “A frequent concerns raised regarding UDRP providers is the potential for “forum shopping,” or that UDRP complainants will seek out providers that they believe will provide a better result.

    The provision of contracts, however, will not stop complainants from filing UDRP disputes with their preferred providers.
    In fact, one of the expected benefits of the diversity of UDRP providers is to provide further choice to all who may invoke the UDRP, including issues of geography and language.”

    Note that this portion references “complainants” and “all who may invoke the UDRP”, with nary the slightest mention of any consideration for the domain registrant who owns a valuable new species of intangible property that can be seized or extinguished in a UDRP. It appears that on this matter complainants, not registrants, are the #1 customer.

    As for the assertion that adopting contracts “will not stop complainants from filing UDRP disputes with their preferred providers”, this again looks like a top-down preemptive attempt to influence a forthcoming community discussion of UDRP reform before it has even commenced (especially paired with the earlier assertion that a contract would be pointless as it would produce the “same outcome”) .
    Finally, “geography” and “language” are not the only reasons that complainants might choose one of the growing ranks of accredited UDRP providers. UDRP providers, like US Circuit Courts, might well diverge on key issues in UDRP adjudication — and that substantive difference might well give a provider with a competitive advantage in attracting certain complaints. A contract could at least provide registrants with some means to seek the uniformity referenced by the U in UDRP.

    And let’s remember that assuring uniformity of UDRP practice as providers proliferate is a widespread concern; ICANN’s Business Constituency has repeatedly stated its belief that ICANN should enter into standard enforceable agreements with UDRP providers.
    “However, the few reports or complaints that ICANN has received regarding existing UDRP providers have not evidenced behavior that would require ICANN to consider whether there was a need to revoke its approval.

    Of course, there is always the future possibility that an issue of non-compliance will arise that will require corrective action.
    In recognition of that potential, ICANN commits that substantiated reports of UDRP provider non-compliance with the UDRP or the Rules will be investigated.

    … While there has not been, to date, a need for ICANN to revoke its approval of any UDRP provider, the concerns raised in the community make clear that ICANN has to be prepared for this potential.

    As a result, ICANN is committed to thoroughly investigate complaints of non-compliance and take corrective action as appropriate.”
    What struck me here was the reference to “reports” and “complaints”, along with the statement that substantiated reports will be investigated. This implies that the only time ICANN looks into the operations of UDRP providers is when a third party goes to considerable lengths to document alleged mis- or malfeasance – that ICANN has no ongoing program to monitor the providers.

    A fundamental feature of any UDRP provider contract would be to require the regular submission of operational data, and to provide ICANN with monitoring and examination authority. If an accredited party knows that it is subject to no ongoing accreditor review, and that the only time it may be investigated is the rare instance when an aggrieved third party has the resources to document a detailed complaint, it will naturally tend to be less scrupulous about strict compliance with the underlying policy because it has minimal compliance enforcement concerns.

    “If the investigations uncover issues of UDRP provider non- compliance, ICANN will work with the affected UDRP provider to determine if the issue can be remedied. If the issue cannot be remedied, and the UDRP provider cannot – or refuses – to return to acting in conformity with the UDRP, ICANN will take action, which might include revocation of its approval of the UDRP provider, taking into account issues relating to the transferring or completion of pending matters before that provider.”

    It seems a bit odd for ICANN to assert that its first reaction to discovery of provider non-compliance would be to work with “the affected UDRP provider” – rather to demand that it immediately come into compliance.

    And did you notice that even if a “UDRP provider…refuses…to return to acting in conformity with the UDRP”, ICANN’s resulting actions only “might include revocation of its approval”. Only MIGHT? That means it also might let a non-confirming provider continue to keep its accreditation, which is a shocking possibility. A UDRP provider that refuses to adhere to the Policy should be de-accredited at once and all pending cases should be immediately transferred to other providers.

    Summing up, I guess you can see that I don’t think a lot of the arguments in the paper hold up – and that I am at a total loss as to why ICANN is so allergic to the notion of UDRP provider contracts. Their viewpoint is clear, and to some extent this document appears to lay down a marker against any discussion of contracts in future UDRP reform discussions within the community.

    Lastly, in regard to the issue of whether or not ICANN was being truthful in its May written statement that URS providers would be placed under contract and that one was being developed, it’s occurred to me that ICANN staff may not have given insufficient attention to the particulars of the question I posed in Beijing (much less provided a deliberately misleading response). What if there was an actual intent to place URS providers under contract at the time the assertion was made in May, which was subsequently reversed within ICANN after internal dissent and deliberations? Did that occur, and if it did who was involved and what factors altered the intent?

    It would be nice to get an answer to that question. Just as it would be nice to know who, and for what reason, struck the word Registrant “Rights” and replaced it with “Benefits” just prior to adoption of the final RAA. That occurrence is not a matter of speculation. Yet ICANN’s sole, unconvincing explanation to date has been that this downgrading of registrant status was made in response to comments requesting a strengthened statement of registrant rights. Providing those answers would be concrete evidence of concern for registrants and commitment to transparency.

    Best regards,
    Philip

  4. says

    Hi Mike:

    Of course people will go “Forum Shopping” look at CentralNic, with their portfolio of Domain Names, functioning as ccTLD’s – using the US Governed “.com” TLD.

    CentralNic, in an effort to evade & avoid US Law: 15 USC § 1125 – False designations of origin, false descriptions, and dilution forbidden ~ went “Forum Shopping” at WIPO … long, long ago; and exactly on 25th May 2001. [process2-comments] RFC-3 located online at > http://www.wipo.int/amc/en/processes/process2/rfc/rfc3/comments/msg00060.html

    Right under the nose of lazy ICANN, who yes DO NOTHING … and who will only respond to complaints when their obliged, under Federal duress.

    Letting the razzle-dazzle, smok’n mirrors Jones Day Team, stir dust.

    UDRP providers will become redundant, as those under siege by Infringers, will employ a genuine Court, where the ccTLD or TLD Registry is located, as per RAA Rule:

    3.7.7.10 For the adjudication of disputes concerning or arising from use of the Registered Name, the Registered Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of the Registered Name Holder’s domicile and (2) where Registrar is located.

    Question is, do these ICANN Rules apply to ICANN too ???

    5. MISCELLANEOUS PROVISIONS.

    5.3.2 Registrar:

    5.3.2.1 is convicted by a court of competent jurisdiction of a felony or other serious offense related to financial activities, or is judged by a court of competent jurisdiction >>>>>> to have committed fraud < <<<<<<<<>>>>>> or is the subject of a judicial determination that ICANN reasonably deems as the substantive equivalent of those offenses; or

    Cheers, Graham.

  5. Louise says

    Thanx for article and comments! “ICANN takes the knife and instead of cutting the pie evenly, they simply take the knife and stab registrants repeatedly, leaving 100% of the pie for themselves.” This blog puts a smile on my face. Glad someone came to work today, @ Phil Corwin. Thanx for putting responses in short paragraphs for easy reading! One specific not responded to is obvious to me, since I assume the syndicate controls ICANN, Verisign, and the major registrars is

    , ICANN will take action, which might include revocation of its approval of the UDRP provider, taking into account issues relating to the transferring or completion of pending matters before that provider.

    “Pending matters” means whatever bad decision is done is done. There is no hint that ICANN intends to intervene in the advent of a bad decision, where a respondent may lose his domain. No surprise!

  6. Louise says

    Because of the syndicate’s COLOSSAL greed for worthy dot coms you have the minimizing of Registrant rights – turning “rights” into “benefits,” and backtracking on UDPR contracts.

    ICANN is coming for your dot com.

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