FC: ICANN roundup; study says domain name dispute process is biased

From: Declan McCullagh (declanat_private)
Date: Thu Mar 07 2002 - 07:52:44 PST

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    Also of interest to ICANNeers, Marc Schneiders sends this along:
    >Do you want to keep the right to vote for directors of ICANN,
    >the body that manages domains and IP addresses (and interferes
    >through trademark issues with free speech...)? Then, please, sign up
    And the .kids (or .kids.us) hearing has been rescheduled to TODAY at 10:00 
    am, in room 2322 of the Rayburn House Office Building.
    Date: Thu, 7 Mar 2002 08:43:30 -0500
    To: declanat_private
    From: Michael Geist <mgeistat_private>
    Subject: Fair.com Update - The Deal with Defaults
    Hope all is well.  I thought you and your readers might be interested in an 
    update to my Fair.com study that generated considerable discussion last 
    summer on Thursday.  The update, which now covers 4,332 ICANN UDRP cases 
    (all cases decided as of February 18, 2002) provides the first 
    comprehensive look at default vs. non-default cases under the ICANN 
    UDRP.  It can be found online at http://aix1.uottawa.ca/~geist/fairupdate.pdf
    The original Fair.com study at
    All the updated data, searchable by panelist, at
    A column providing the highlights is at
    The update reaches the following conclusions:
    1.      There have been no changes in forum shopping concerns raised in 
    original study as caseload and case outcomes remain roughly the 
    same.  Moreover, in the intervening period, eResolution, the arbitration 
    provider most affected by forum shopping, has gone bankrupt.
    2.      Case allocation concerns have gone from bad to worse.  NAF's top 
    six panelists have now decided 56.4% of their single panel cases with 
    complainants winning over 95% of the time.  WIPO's two respondent-friendly 
    panelists have still yet to receive a case (2250 cases and counting) and 
    the provider's 124 panelists with 5 or more single panel cases have now all 
    ruled in favor of complainants at least 50% of the time.
    3.      Default cases constitute 54% of all cases.  Contrary to some 
    claims, there are differences between providers on default cases. NAF rules 
    in favor of complainants 98% of the time in default cases, followed by WIPO 
    at 92% and eResolution at 79%.  In fact, several leading NAF panelists have 
    never ruled in favor of a respondent in a default case.
    4.      There is no significant difference in percentages when accounting 
    solely for non-default cases (as NAF and other critics argued was 
    necessary).  In single panel non-default cases, WIPO and NAF both rule in 
    favor of complainants around 70% of the time.  By contrast, eResolution 
    rules in favor of complainants 50% of the time. This is virtually the same 
    percentage difference as when all cases (default and non-default) are examined.
    Similarly, the difference between single panel and three-member panel in 
    non-default cases remains unchanged from the overall numbers. Complainants, 
    who still surprisingly request the majority of three-member panel cases, 
    win 68% of single panel cases but only 46% of three-member panel 
    cases.  The 22% differential is nearly identical to the 23% differential 
    when all cases are accounted for.
    In other words, claims that provider and panel composition differences can 
    be explained by the inclusion of default cases are simply wrong.  There are 
    (or at least were) critical differences between providers and between the 
    outcome in single vs. three-member panel cases.
    Professor Michael A. Geist
    University of Ottawa Law School, Common Law Section
    57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
    Tel: 613-562-5800, x3319     Fax: 613-562-5124
    e-mail: mgeistat_private
    URL:    http://www.lawbytes.ca
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