View Thread > Cyberlaw and the Global Economy 2003 > UDRP and the ACPA > The states must comply with the system
Sallen v. Corinthians (http://www.case.info/domain/corinthians1.html) demonstrates what happens when a party is unhappy with the result of ICANN's Uniform Domain-Name Dispute-Resolution Process (see http://www.icann.org/udrp/udrp.htm) and turns to her or his national law (see http://www.gigalaw.com/library/anticybersquattingact-1999-11-29-p1.html) to seek relief against a party from another country. Is this process desirable as a policy matter? Should there be any restriction on the ability of one party to appeal to national law after an adverse result under the UDRP? What level of deference should be accorded a UDRP proceeding by a sovereign's legal system?
The Sallen ruling subjugates UDRP proceedings to the ACPA, allowing national law to trump an international regulating body. It seems to me like the same policy arguments recur in any international endeavor that may conflict with national laws. The benefits of uniform international regulation are 1) only one set of laws, 2) regulations specially designed for international community, and 3) no worries about jurisdictional issues. The arguments for national law to prevail are 1) national laws reflect individual countries’ decisions about entitlements and should not be cast aside whenever an international device is made, 2) economies of countries are built around national laws and new regulations may be inefficient 3) people can use the courts they are accustomed to.
If domain names are to be uniform, obviously the disastrous result of both parties appealing in separate countries a UDRP proceeding and both winning the name rights (leading perhaps to inconsistent DNS entries) must be avoided. The best solution I can see is for courts (unless perhaps both participants reside in the same country) to respect the UDRP in terms of who keeps the rights to the name, but maintain the ability to apply national law to set damages. UDRP proceedings are quick and paper-only, which makes them wonderfully administrable, but perhaps not the best tool for ultimately reaching a fair result. Imagine some rogue registers “palfreys_ties_are_ugly.com”--it makes sense to keep the national courts available in case the UDRP misconstrues Massachusetts slander/defamation laws, so that if Palfrey can’t get the name stopped, he can at least recover damages.
But maybe I’m overreacting in the sense that separate countries awarding rights to the same domain name isn’t really a problem, since whichever court has jurisdiction over NSI or the most servers is the only one that matters. In that case, maybe we should realize that the internet really is _somewhat_ U.S. centered, and perhaps accept that U.S. law entirely prevailing over the UDRP isn’t such a bad thing. If wealthy corporations and/or sympathetic individuals truly are harmed by U.S. court rulings, political pressure (from both foreign nations and U.S. companies hoping to do business with foreign nations) will hopefully bring U.S. law into line.
First of all I'm not sure we should mix other legal issues with the question of who has the right to a specific domain name. If we do, we will soon be entangled in a web of legal intricacy which will include anything from obscenity to unfair marketing. In my opinion the UDRP should only resolve what it was intended to resolve, namely the domain name issue.
That said, I totally agree that there could be a problem with several national courts claiming jurisdiction over domain name disputes. This is why I think it is important to rewrite the UDRP rules so that only one court or organization has jurisdiction on appeal. (Perhaps it could be a court or an organization in the country where the Registrar in question is located…) This would allow U.S. courts to have jurisdiction over the .com domain and would (in theory) give jurisdiction to a court/organization which has a possibility to enforce the decision. It would also make it possible to create greater conformity among the many (today) disparate decisions.
We must not forget, however, a system like the UDRP only functions as long as all individual nation-states adhere to the system. As long as national courts can claim jurisdiction under national laws, we will run the risk of having different courts reaching different decisions. I therefore believe that it is very important not only to create a good non-national system, but also to get the states to adhere to it (i.e. by not claiming jurisdiction on the basis of national law). If we cannot get the different states to do this, we seriously run the risk of undermining the functionality of the system (cf. the American attitude towards the International Criminal Court).