Fast, Cheap, and Out of Control: Lessons from the ICANN Dispute Resolution Process

Authors

• Elizabeth G. Thornburg, Southern Methodist University, Dedman School of Law

Abstract

The Internet is constantly expanding, both as a means of communication and as a means of commerce. As its contacts among people and businesses expand, more and more disputes will arise and will need resolution. These disputes will evolve both from business-to-consumer transactions and from business-to-business transactions. Some of the claims will include breach of contract, breach of warranty, and even fraud. Others will concern intellectualproperty rights such as trademarks, copyrights, and patents. Still others will involve competition law, raising issues of antitrust, trade disparagement, and other claims of unfair competition. Alleging defamation, invasion of privacy and emotional distress, some claimants will seek redress for Internet invasions of personal rights. And personal-injury claims will arise from products sold on the Internet.

What's an Internet user to do? The answer may be privatized online dispute-resolution ("ODR") systems, an allegedly faster, cheaper, and more convenient alternative to national courts (and sometimes national law).' Ideally, the design and implementation of ODR systems could be a unique opportunity to create fair and accessible processes that would evenhandedly resolve individual disputes while protecting important national laws and policies. Unfortunately, ODR systems could also become one more way for "repeat players" to replicate their societal advantages - this time on a global level and largely free of public scrutiny. Thus, the context and structure of the systems that evolve will be crucially important in ensuring procedural fairness and protecting the rule of law.

Some have suggested that a good model for global ODR is the Uniform Dispute Resolution Policy ("UDRP"), which is currently used by the Internet Corporation for Assigned Names and Numbers ("ICANN") to resolve Internet domain-name disputes. This article, however, argues that although the UDRP makes a few good procedural choices, it is a flawed system that does not operate fairly, even within its own limited sphere. Its failures provide sobering reminders of the potential weaknesses of privatized dispute-resolution systems.

Section II of the article briefly describes the development of the UDRP and explains the way the system works. Section III discusses the system's more positive qualities, while Section IV focuses on the problems revealed by the operation to date of the ICANN process. Section V explores the lessons of the UDRP more broadly, and section VI concludes that a just and equitable system would share few qualities with the UDRP.

Recommended Citation

Elizabeth G. Thornburg, Fast, Cheap, and Out of Control: Lessons from the ICANN Dispute Resolution Process, 6 Computer L. Rev. & Tech. J. 89 (2002)