If you have ever spent one day in law school you would learn that in the court system, judges are not allowed to hear cases in which they have any type of interest and certainly not in cases involving former clients.
However in the UDRP/WIPO world that doesn’t seem to be a problem for panelists to decide cases, even if they used to work for one of the parties.
The complaint was brought Clorox
It was decided by a 3 member panel.
The head of the panel, otherwise known as the presiding panelist, was Christopher Gibson, who previously worked at the law firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, which was the firm that represented Clorox in the proceeding.
Lets review that again.
The presiding panelist of the case, used to work at the same firm that represented Clorox in this proceeding.
S0 how did the decision go
By a majority decision, 2-1 the panel found in favor of the domain holder and against Clorox.
Guess how Mr. Gibson voted?
He was the one panelist who voted for Clorox and against the domain holder.
Not only did he vote against the domain holder, he filed a long dissenting opinion (also below)
Now the case itself is of very little interest to me.
What is of interest is how can a person who used to work at a law firm that now is representing one of the parties allowed to preside over the case?
Although its been quite a number of years since this panelist used to work for the law firm that represented Clorox, this is an example of the larger problem of Conflict of Interest issues in UDRP/WIPO.
In a real world court case, a judge typically will recuse himself from presiding over a case if he has any ties whatsoever to either party in the case.
An attorney can bring a motion in a court case asking the judge to recuse himself and present evidence of why he should.
A judge who fails to recuse himself and decides a case in which he has a conflict of interest or even a the appearance of a conflict of interest, jeopardizes his ruling and gives the losing party grounds to appeal the case.
However there does not seem to be any rule in the WIPO/UDRP world that allows a party to a proceeding to object to a panelist appointment if there is a conflict of interest or a perceived conflict of interest.
Although WIPO rules say that:
“”Panelists must confirm to WIPO the absence of any potential conflict of interest before taking a case, as well as disclose in a written statement any and all facts that should be considered prior to appointment.”
The rules basically rely on panelists to police and recuse themselves and fo course there is no appeal from a UDRP or WIPO
Assurance of randomly selected, impartial panelists should be a goal for UDRP reform.
General standards that go beyond self-policing must be in place.
Phil Corwin of the ICA has called for UDRP reform and this would certainly be one of the issues needing reforming.