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ICANN’s Approval of ACDR as UDRP Provider Leaves Standard Contracts Issue Unresolved by Philip Corwin

Internet Commerce Association logoThe Arab Center for Dispute Resolution (ACDR) has been approved as a UDRP provider by ICANN’s Board of Directors. However, the language of the Board resolution of approval leaves unresolved the critically important issue of whether all UDRP providers will be placed under a standard and enforceable contractual agreement.

The Board action took place during its meeting of May 18th, with the full text available at www.icann.org/en/groups/board/documents/resolutions-18may13-en.htm#1.d.

The portion relevant to the issue of provider contracts and uniformity of UDRP implementation states:

Other commenters suggested that ICANN develop contracts with each of its UDRP providers as a means to require uniformity among providers. Contracts have never been required of UDRP providers. On the issue of uniformity among providers, however, the ACDR’s proposal does two things: first, highlighted areas where risk of non-uniform conduct was perceived (such as issues with commencement dates and definitions of writings) have been modified; second, the proposal now includes an affirmative recognition that if ICANN imposes further requirements on providers, the ACDR will follow those requirements; third, the ACDR has revised a specific portion of its Supplemental Rules that was highlighted by commenters as a potential risk to uniformity. This is a positive advancement and helps address concerns of ICANN’s ability to, in the future, identify areas where uniformity of action is of its obligation to abide by ICANN modifications that could enhance uniformity among providers. (Emphasis added)

ICA has continuously been the leading voice in calling for all UDRP providers to be placed under a standard contract (see internetcommerce.org/ACDR-UDRP_Comment_Letter). With all respect, the fact that “contracts have never been required of UDRP providers” is exactly the problem we seek to fix, as it is the lack of standard requirements and flexible yet effective enforcement mechanisms that leads to divergence in UDRP administrative practice and the encouragement of forum shopping.

But we hope that the Resolution favorable citation of ACDR’s willingness to abide by further ICANN-imposed requirements on UDRP providers as an important step toward assuring uniformity is a signal that the contracts issue may soon be addressed. Certainly, the contracts for arbitration providers precedent has now been set by ICANN’s recent confirmation that providers of Uniform Rapid Suspension (URS) will be placed under contract – and so far, both of the announced URS providers are existing UDRP providers (see internetcommerce.org/URS_Contracts_Coming).

The Resolution also contains another passage worthy of comment:

ICANN’s consideration of the ACDR’s proposal also highlights the import of accountability to the community. After the community requested the opportunity to see the proposal again prior to approval, the Board agreed and asked staff to proceed with a further comment period. In addition, the Board also requested that staff report to the community on how ICANN’s earlier consideration of UDRP provider uniformity issues was concluded. As a result, a briefing paper has been prepared and will be publicly posted. (Emphasis added)

Again, ICA took the lead in requesting that the revised ACDR application be subjected to a new round of public comment (see http://internetcommerce.org/ACDR_UDRP and http://internetcommerce.org/ACDR-UDRP_Board_Deferral) and we appreciate that the Board did so. We also look forward to reviewing the staff paper on UDRP uniformity issues as soon as it is made available. But we remain committed to the position that, especially in the case of a non-profit entity like ICANN that can only exercise authority via contracts, the development of a standard UDRP provider contract is essential and even more important today as UDRP providers proliferate and more than one thousand new gTLDs are about to enter the DNS.

This article by Philip Corwin from the Internet Commerce Association was sourced with permission from internetcommerce.org/ACDR-UDRP_Approval