Fast, Cheap & Out of Control: Lessons from the Icann Dispute Resolution Process

Abstract

Some people have argued that the uniform dispute resolution process used by ICANN to resolve domain name disputes would be a good model for internet disputes generally. This article argues the opposite: the UDRP teaches sobering lessons about the consequences of privatized dispute resolution processes. The lessons include: the questionable legitimacy of privately-adopted substantive standards; the danger of unprincipled choice of law decisions to fill in the gaps in that private law; unreconciled splits among arbitrators as to the meaning of the standards; and a tendency to expand beyond the narrow jurisdictional limits of the policy. The UDRP also demonstrates that procedural choices can exacerbate substantive ones when private processes are imposed without true consent, when procedural rules have uneven impact on the parties, and when procedures designed primarily to be fast are allowed to frustrate other due process values. The failures of the ICANN process show that government still needs to play a role in the world of otherwise private dispute resolution. Private systems are only useful if the applicable law is legitimate and the applicable procedures are actually fair. Unfortunately, in settings involving power imbalances, the systems that have been designed to date have not met the due process sniff test. Acceptable rules could be geared toward providing affordable access to the process, notice, a method for sharing relevant information, a reliable way of resolving factual disputes, the use of truly unbiased decision makers, process transparency, written reasoned opinions, and some kind of meaningful appeal. The system would balance cost and fairness in ways that impacted parties evenly. It would not be mandatory, but rather would have to attract parties who were not compelled to participate. The ICANN process does a poor job within its own limited sphere, and if allowed to expand into other areas would suffer from even more significant substantive and due process failures.

Keywords: ICANN, UDRP, dispute resolution, online dispute resolution, technology, internet, due process, privatization

JEL Classification: K41