HOW CAN ANY ORGANIZATION THAT SELLS THE LAST WORD BE FAIR AND UNBIASED?


According to an article on the National Arbitration Forum website (http://www.arbforum.com), a Federal Court conducted an extensive review of domain dispute arbitrator NAF and confirmed that it is "a reasonable, fair and impartial forum." (Marsh v. First USA Bank, N.A., No. 3:99-CV-0783-T (N.D. Tex. May 24, 2000)).

In a wide-ranging public and courtroom attack, Plaintiff's lawyers had contended that the National Arbitration Forum arbitrators were prejudiced against consumers and that its fees and rules under the Forum's Code of Procedure were high and unreasonable. The Court characterized the claims as "unfounded" and "illusory."

The Court endorsed the Forum's panel of independent, highly experienced and qualified arbitrators who are required to adhere to the applicable law. The opinion also affirmed that parties in Forum-conducted arbitrations are ensured fair and reasonable treatment:

The Forum provides "an impressive assembly of qualified arbitrators;"

Each arbitrator must take an oath to follow the law and Forum Code of Procedure, which "concisely sets forth the arbitration rules;"

Parties are given the same legal opportunities as in the court system, because "All legal remedies and injunctive relief are available;" and

The Forum's fee schedule is "clearly stated and reasonably based."

Yet two noted experts, Michael Froomkin and David Post, have endorsed trademark attorney Carl Oppedahl's comments:

The ICANN-accredited dispute resolution service providers are never selected by domain name owners, but are solely selected by complainants. This leads to a profound temptation to stray toward bias in favor of complainants, so as to gain market share.

And indeed we've seen one of the providers succumb to this temptation -- see http://www.arbforum.com/new/index.html in which NAF boasts of its willingness to take action against "cybersquatters".

The process is terribly skewed against domain name owners. For example, a complainant who is unhappy with an ICANN decision can wait months or years before proceeding to ordinary court. The domain name owner who is unhappy with an ICANN decision, on the other hand, faces the nearly impossible task of hiring counsel, hiring local counsel, doing conflict checks, drafting papers, and filing, all within a mere ten days.

NAF recently changed its Supplemental Rules to be even more favorable to complainants. Prior to this change, NAF (and all the other dispute resolution service providers) had a simple "two-pleadings" rule. Each dispute was decided on two pleadings total, a Complaint and a Response.

NAF has added a "last word," a reply paper that any complainant may file as of right, within five days of the Response, upon payment of a $150 fee.

The availability of this "last word" filing will make NAF even more attractive to complainants as compared with other dispute resolution service providers.

Judith Oppenheimer is a noted toll free number and domain name expert; president of http://1800TheExpert.com, and publisher of http://ICBTollFree.com. Copyright (c) 2000 ICB, Inc. All rights reserved.