Academic journal article Santa Clara High Technology Law Journal

Judicial Review of ICANN Domain Name Dispute Decisions

Academic journal article Santa Clara High Technology Law Journal

Judicial Review of ICANN Domain Name Dispute Decisions

Article excerpt

Since late 1999 more than 3,000 quasi-arbitral proceedings have been conducted to address disputes involving Internet domain names. (1) These proceedings are governed by the Uniform Dispute Resolution Policy (UDRP) adopted by the Internet Corporation for Assigned Names and Numbers (ICANN). (2) A UDRP proceeding is instituted by a trademark owner who wishes to challenge a domain name. (3) If the UDRP panel orders that the domain name should be transferred to the trademark owner, that order will be implemented unless the domain name registrant promptly commences a lawsuit against the trademark owner. (4) Apart from this provision for external judicial review, there is no appeal mechanism within the UDRP.

Domain name registrants have taken advantage of the right to seek judicial review in a small but significant number of cases. (5) At least two U.S. courts thus far have held that they are not bound by UDRP decisions, although the legal effect of these decisions remains unclear. (6) Courts normally apply an extremely deferential standard of review to arbitration decisions. As this Article will explain, however, courts should be very hesitant to place much reliance on the conclusions of UDRP panels.

Part I of this Article discusses the scope of judicial review of arbitration decisions generally. Part II describes ICANN's UDRP process, including some of the major differences between UDRP proceedings and conventional arbitration. Part III examines the experience to date of courts that have addressed disputes subject to parallel UDRP proceedings. (7) Finally, in Parts IV and V, the Article discusses substantive and procedural objections following UDRP decisions in legal proceedings, and concludes that a de novo standard of review is warranted.

I. JUDICIAL REVIEW OF ARBITRATION DECISIONS GENERALLY

Arbitration offers numerous benefits. Compared to litigation, arbitration is a fast, inexpensive, and efficient means of resolving disputes, and it provides a greater degree of finality. (8) Yet it does not always deliver all of these promised benefits; in particular, arbitration can be quite expensive and drawn out, (9) and it is not uncommon for those who lose in arbitration to seek recourse in the courts.

Courts apply an extremely narrow standard of review to arbitration decisions. The Federal Arbitration Act (10) provides only four grounds for vacating an arbitration award, all of them procedural in nature:

(1) Where the award was procured by corruption, fraud, or undue means.

(2) Where there was evident partiality or corruption in the arbitrators, or either of them.

(3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.

(4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. (11)

Some courts will also reverse arbitration awards that are arbitrary or capricious, in manifest disregard of the law, or contrary to public policy, even though these grounds do not appear in the federal statute, (12) and parties themselves may contract for broader judicial review (for example, for errors of fact or law) in their arbitration agreement. (13)

The primary justification for limiting the scope of judicial review is to preserve the finality of arbitration awards. Absent such a limitation, a losing party could always appeal to a court, avoiding finality and defeating the other purposes of arbitration as well. (14) Furthermore, courts frequently are not well equipped to address issues decided in arbitration. Arbitration panels often decide cases without making detailed findings of law and fact, making it difficult or impossible for a court to review the substance of a panel's conclusions. …

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