[nc-udrp] Not Forum Rules, but the UDRP

["Cole, Tim" <tcole@arb-forum.com>]

While the Forum will not comment on the facts involved in a pending dispute,
it is important that certain misunderstandings set forth below about the
UDRP be corrected.

A careful read of the UDRP Rules will disclose that the "file-now-pay-later
policy" referred to below is not a Forum policy and is not found in the
Forum rules, but comes directly from the UDRP Rules.  See Rule 19(c), which
establishes the ten day period.  Presumably all providers, not just the
Forum, follow this Rule.  The payment deadline that applies to Respondents
also comes from the Rules.  See Rule 5(c).  It would seem that the drafters
of the UDRP, who included a window of time for receipt of an initial fee for
the Complaint, would have included one for the Response if that had been
their intention.  In fact, the Rules explicitly state that failure by
Respondent to pay the fee (to have the dispute decided by a three-member
Panel) at the time the Response is submitted shall result in a single-member
Panel.  The Forum did not draft these Rules, but is charged with the fair
administration of proceedings under them.  It is unfortunate that when the
Forum applies the UDRP consistently and evenly as drafted, some folks
perceive this as unfair.  I know many parties who would be far more
concerned if the Rules were interpreted on a case-by-case basis.  From a
procedural standpoint, in its administration of these proceedings, the Forum
makes every effort to apply consistently and predictably the Policy and
Rules.  Any other approach would leave parties guessing from one situation
to the next how their disputes will be administered.

Tim Cole
Director, Internet Dispute Solutions
National Arbitration Forum


 -----Original Message-----
From: 	John Berryhill Ph.D. J.D. [mailto:john@johnberryhill.com] 
Sent:	Thursday, February 20, 2003 4:09 PM
To:	nc-udrp@dnso.org
Subject:	[nc-udrp] Another Interesting NAF Rule Asymmetry


Over the last year or so, the NAF has commendably eliminated several
asymmetries in its rules relative to supplemental filings and refunds of
three-member panel fees paid by respondents in withdrawn cases.  Apparently,
further work remains to be done in this area.

Under the NAF rules, the Complainant may submit a complaint, and is then
given ten days in which to pay the complaint fee.

Interestingly, if the Respondent requests a three-member panel, no such
period of time is provided for payment of the fee.

I have been informed today of a situation where a Respondent requested a
three member panel in the response, but the page with the Respondent's
credit
card data apparently passed through the fax machine incorrectly - stuck to
the previous page.  While it is clear from the filing that the cover page
correctly recited the contents of the transmission as including the credit
card data, the NAF has taken the position that because the fee wasn't paid
that day, they will not allow the Respondent to pay for the three-member
panel expressly requested by the Respondent in the response.

It is a curious thing that Complainants are provided a file-now-pay-later
policy by the NAF, but Respondents are not provided the identical terms.
Once again, these sorts of asymmetries in the treatment of Complainants and
Respondents are only perceived by the public as evidence of bias, and
needlessly so.