Frequently Asked Questions about the proposed Commercial Dispute Resolution Process Maintained by; Timothy Denton, Ross Wm. Rader Purpose: To address specific questions about the proposed Commercial Dispute Resolution Process and any attendant issues. Originally Created: 08/26/02 Last Updated: 09/04/02 1.1 WHAT IS THE COMMERCIAL DISPUTE RESOLUTION PROCESS? 1.2 DOES ICANN HAVE A CDRP NOW? 1.3 IS A CDRP NORMAL? 1.4 IS A CDRP DESIRABLE? 1.5 WHY WOULD A CDRP BE AN IMPROVEMENT OVER THE POLICY PROCESS? 1.6 WHY NOT LOOK TO ICANN STAFF TO RESOLVE COMMERCIAL DISPUTES? 1.7 WHY NOT GO TO COURT? 1.8 HOW WOULD A CDRP WORK? 1.9 WOULD OTHER PARTIES NOT CONTRACTED TO ICANN BE ABLE TO PARTICIPATE? 1.10 WOULD THE CDRP APPLY TO REGISTRARS AND REGISTRIES OF COUNTRY CODES? 1.11 WOULD THE ARBITRATOR’S DECISION BE FINAL? 1.12 HOW WOULD SUCH A PROCESS BE CREATED? 1.13 HOW WOULD THE DETAILS OF THE CDRP BE WORKED OUT? 1.14 WHERE IS THE CDRP PROPOSAL DESCRIBED? 1.1 What is the Commercial Dispute Resolution Process? The CDRP is a proposal to ICANN that their commercial contractors (Registries and Registrars) be able to avail themselves of a dispute arbitration process. This would mean that registrars and registries would agree, in the contracts the contracts they sign with ICANN, to submit disputes arising from the interpretation of ICANN contracts to arbitration. 1.2 Does ICANN have a CDRP now? No. ICANN has a Domain Names Supporting Organization (DNSO) for the development of policy. The DNSO contains seven constituencies. The DNSO does not involve itself in resolving disputes between commercial contractors that arise through the day-to-day business of registrations, transfers and deletions of domain names. 1.3 Is a CDRP normal? Dispute resolution process through adjudication is a common feature of membership in private-sector international organizations. Several model rules of procedure are available. In addition, there is already a process of for resolving trademark-based domain name disputes, adhesion to which was made obligatory for all ICANN registrars, registrants and registries. 1.4 Is a CDRP desirable? We believe it is. The policy development process within the DNSO and the ICANN structure itself is consensus-based. It is complex, in that it involves seven constituencies and a multitude of interests. Its processes have been so convoluted it has sparked a significant reform effort with ICANN itself. Most importantly, it was not intended to resolve disputes between commercial contractors and has therefore been incapable in two years of effort of resolving some basic issues of commercial practice, such as how registrars are to transfer domain names at the request of registrants. 1.5 Why would a CDRP be an improvement over the policy process? The CDRP is a process of inquiry and fact determination, and the interpretation of contract. It calls for a sustained effort of understanding of a set of facts and business processes. By contrast, the policy development process is political, it is based on interest groups, and it is not organized to receive, inquire into, and evaluate facts and law. Inquiry and fact determination within a framework of contract characterize the CDRP. It serves a different purpose from policy formulation, and needs a separate forum and focus within ICANN. 1.6 Why not look to ICANN staff to resolve commercial disputes? Such a course of action is quite possible. However, the CDRP is intended to be a somewhat more formal process than consultations with and rulings by staff, to have all the advantages of a public hearing, to allow the parties to choose their adjudicator, and to allow for third party interventions, and to require a public ruling based on stated reasons. 1.7 Why not go to court? For the same reasons that informal dispute resolution processes are favored in many private international organizations: - Court cases are too slow; - Court costs are too large, especially relative to the business process issues that are at stake; - People from different countries feel disadvantaged in foreign courts and legal systems. 1.8 How would a CDRP work? While many details need to be worked out, the essence is that parties to contracts with ICANN would agree to submit their disputes to arbitration when a party considered the behavior of another contracted party violated the obligations owed towards him by terms of its ICANN contract. They would proceed as arbitrations usually do, to the selection of one or more arbitrators, and the presentation of evidence. 1.9 Would other parties not contracted to ICANN be able to participate? Probably yes. Rules need to be worked out for other constituencies within ICANN or parties to be able to participate. Participation might consist of submitting interventions, or such other methods as the rules ultimately allow. 1.10 Would the CDRP apply to registrars and registries of country codes? This is a decision for the Board of ICANN to make when it has enough information. It is Tucows’ best guess that the international nature of gTLDs favors the adoption of a CDRP in the generic namespace, whereas the arguments for such a process may be quite different inside a particular country and a common legal system. 1.11 Would the arbitrator’s decision be final? Possibly not. The alternative would be for the arbitrator’s rulings to be confirmed, denied, or amended by the Board of ICANN. Tucows has suggested that the ICANN Board retain final authority over arbitrator’s rulings. It is a matter for further consideration. 1.12 How would such a process be created? There are several possible ways: - A decision of the Board of ICANN to create one; - A stipulation of the Department of Commerce that ICANN develop one - A bottom-up consensus process within the DNSO or its successor. The history of the policy process within the DNSO indicates that, while the CDRP process may gain support in many important quarters, it cannot be approved quickly without support from the Board. 1.13 How would the details of the CDRP be worked out? Tucows recommends that the Board of ICANN make the development of a CDRP a priority, and that it create a committee of interested persons, armed with a mandate from the Board to inquire into dispute resolution processes, and report back to them with findings and recommendations within a relatively short time frame. 1.14 Where is the CDRP proposal described? All CDRP related documents (including this FAQ) can be found at Tucows’ proposals for the reform of ICANN and other reform documents are set out in 3