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.
Take the case of cloro.com which was the subject of a WIPO decision handed down today.
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?
Good guess
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.
As a bit of history and ICANN Trivia (a new game?)…
…here are the UDRP Five…the 5 people who largely crafted the UDRP…
UDRP “Drafters” or “Birthers” ?
Michael Froomkin – ICANNwatch
Kathryn Kleiman – Now of PIR.ORG (ISOC)
Rita Rodin – Afilias Affiliate and Now on ICANN Board of Directors
J Scott Evans – Yahoo
Jonathan Cohen, Shapiro Cohen, CA – ICANN Board …-2003
http://www.internetcommerce.org/node/185
“trademark attorney Kathryn Kleiman, a final drafter of the UDRP”
http://icannwiki.org/UDRP
Ms. Rodin assisted in the drafting of ICANN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”)
http://icannwiki.org/J._Scott_Evans
http://www.icann.org/en/biog/cohen.htm
http://www.theregister.co.uk/2001/10/04/what_the_hell_is_udrp/
“The most significant criticism of UDRP has been written by Michael Froomkin of the University of Miami School of Law.”
Froomkin created UDRP and is now a major critic ?
Missed this part…Y.COM
http://www.trademarkia.com/ycom-77910461.html
On Tuesday, January 12, 2010, a U.S. federal trademark registration was filed for Y.COM. This trademark is owned by YAHOO! INC., 701 First Ave., Sunnyvale, CA 94089.
The correspondent listed for Y.COM is J. SCOTT EVANS, ESQ. of YAHOO! INC., 701 FIRST AVE, SUNNYVALE, CA 94089-1019 .
I asked the question about UDRP panelists and conflict of interest as stockholders in complainant companies, in a recent thread on here.
Are there any checks on stock ownership of panelists?
James
I don’t know of any place one can find stock ownership of individuals that are not insiders of the company
U.S. Supreme Court judges come from Harvard (or Yale).
No prior experience as a Judge is required to be a U.S. Supreme Court if you are from Harvard.
MHB – “I don’t know of any place one can find stock ownership of individuals that are not insiders of the company”
Then it’s plausible, and in fact likely that in some UDRP cases, panelists (or their nearest and dearest) own stock in the complainants company, whereas it is highly unlikely that they have any interest in the respondants business.
James
If you disqualified everyone who owned directly or indirectly through a mutual fund 1 share of stock in a company from hearing a dispute I don’t know how many people would be left.
True, but there must be a level where the amount of stock held directly can be deemed as conflict of interest. As with this case, the panelist was previously employed by the complainants law company – maybe he left because he didn’t like working there; maybe he was fired, or maybe not. There are degrees where things can become an issue.
Mike,
can you sue ICAAN based on this:
To own a name you must agree to their rules, UDRP to be specific.
NAF and WIPO are not fair enough
1. Biased selection of arbiters to get more business
2. No appeal, plus not all countries allowed suits to recover domains lost in proceedings
3. etc etc
Thus, the agreement should be null and void until they fix it. if so, I’ll add a few hundred dollars to a fund to make ICANN more fair
Einetein
You can sue anyone you like but your not going to win a suit like this against ICANN
If you want to add money to a fund to try to make ICANN more fair I suggest giving the money to the ICA