DNS - Panel Appointment for Domain Name Disputes Requires More Transparency: DNattorney

A new study from DNattorney.com suggests that domain name dispute case handling requires more transparency because it has been noted that “a handful of domain name arbitrators are appointed to decide a disproportionate amount of cases.”

DNattorney thinks that the practice of giving an apparent disproportionate amount of the cases to some panelists may possibly affect the outcome of such cases. The study argues that greater transparency is required in order to explain the concentration of cases amongst certain panelists.

The National Arbitration Forum, which is accredited by the Internet Corporation for Assigned Names and Numbers, or “ICANN,” as a Dispute Resolution Provider, is mandated to administer domain name disputes between trademark owners and domain name owners involving the allegation that the domain name owner is a cybersquatter.

The NAF has about 141 Panelists on its roster. DNattorney found that NAF has administered approximately 10,000 such cases since 1999.

DNattorney examined case-related data obtained directly from the National Arbitration Forum’s own Web site and found that certain panelists were appointed to hear a surprisingly large number of cases.

ICANN’s Rules allow the NAF to appoint arbitrators from its roster in cases to be heard by single panelists, and to nominate panelists in three-member panel situations, DNattorney said.

The study found that single panel situations are by far the most common. There is no express provision that the appointment must be random; however, many observers and practitioners expect and understand that the process is random, or at least believe it ought to be random.

DNattorney argues that the concentration of panel appointments was apparent because the data showed that, for example, a particular panelist presided in approximately 966 cases, the vast majority of which were single-panel cases wherein she was appointed by the NAF and not nominated by any party to the arbitration.

The number is clearly disproportionate, as it represents nearly 10 percent of the nearly 10,000 such domain name dispute cases heard by NAF, especially if the cases are or ought to be randomly distributed to the 141 NAF panelists on the roster.

Zak Muscovitch, a domain name lawyer and publisher of the report, argues that ICANN should revisit the Rules and require that panel appointment is always random. Otherwise, there will be an apprehension of an unfair process amongst some observers and stakeholders who believe that the selection of the panelist is of paramount importance and has a substantial likelihood of affecting the outcome of cases.

To encourage discussion of these and other domain dispute issues, DNattorney has created a free sign-up to receive daily NAF Case Update so that interested parties can receive daily notices of new NAF decisions.

NAF apart, the World Intellectual Property Organization, or “WIPO,” is one of the other ICANN-accredited domain name dispute resolution providers.