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The Case of the Uniform Domain Name Dispute Resolution Policy William & Mary Law Review Volume 43 (2001-2002) Issue 1 Article 7 October 2001 Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy Laurence R. Helfer Graeme B. Dinwoodie [email protected] Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the International Law Commons, and the Science and Technology Law Commons Repository Citation Laurence R. Helfer and Graeme B. Dinwoodie, Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy, 43 Wm. & Mary L. Rev. 141 (2001), https://scholarship.law.wm.edu/wmlr/vol43/iss1/7 Copyright c 2001 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr DESIGNING NON-NATIONAL SYSTEMS: THE CASE OF THE UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY LAURENCE R. HELFER & GRAEME B. DINwoODIE* TABLE OF CONTENTS INTRODUCTION ..................................... 144 I. HYBRID NON-NATIONAL SYSTEMS: THE EXAMPLE OF THE UDRP ...................... 154 A FramingTrademark-Domain Name Conflicts ........ 154 B. The Evolution of Non-NationalDispute Settlement for Cybersquatting ..................... 157 1. The gTLD-Mo U's Administrative Challenge Panels (ACPs) ................................ 158 a. The gTLD-Mo U's Authority for Creatingthe ACPs .......................... 159 b. The Hybrid Nature of ACP Dispute Settlement .... 160 c. Narrowing the Scope of EligibleDisputes ....... 163 2. The WIPO Domain Name Consultative Process ..... 164 a. Authority for WIPO Consultations and Proposals .............................. 166 b. The Scope and Hybrid Nature of Dispute Settlement Under WIPO's Proposals ............ 171 (1) WIPO's Interim Report .................... 171 * Larry Helfer is Professor of Law at Loyola Law School, Los Angeles, and Graeme Dinwoodie is Professor of Law at the Chicago-Kent College ofLaw. Copyright 2001, Laurence R. Helfer and Graeme B. Dinwoodie. Thanks to Robert Mnookin, Judith Resnik, Hal Krent, MichaelVan Alstine, Brian Havel, Paul Stephan, and Roger Alford for reviewing early drafts of this Article or discussing aspects of these fascinating issues with us. We also benefitted greatly from presentation of the ideas contained herein in a variety of fora, including the Stanford-Yale Junior Faculty Forum, the Ninth Annual Fordham Law School Conference on International IntellectualProperty Law and Policy, the Chicago-Kent College of Law Faculty Mini-Roundtable, the Forum on Private International Law organized by the World Intellectual Property Organization, and the International Law Weekend West Conference at Pepperdine University School of Law. Work on this Article was supported by fellowships from Chicago-Kent College of Law and Loyola Law School, Los Angeles. WILLIAM AND MARY LAW REVIEW [Vol. 43:141 (2) WIPO's FinalReport ...................... 174 c. Assessment of the WIPO Process ............... 177 3. ICANN's Review and Implementation of the UDRP ................................ 178 a. Expedited Implementation Timetable ........... 178 b. ICANN's Authority for Creating the UDRP ....... 180 c. Narrowingthe Scope of Eligible Disputes While Maintaininga Hybrid Dispute Settlement Model.. 182 4. The UDRP in Practice ......................... 187 II. CHECKING FUNCTIONS IN THE UDRP ................. 189 A. The Values of Hybridization in Non-National Systems ........................... 191 B. Checking Functions in InternationalArbitration and in the UDRP .................................. 193 1. Checking Functions in InternationalArbitration .... 193 2. Misplaced and Inadequate Arbitral Checking Functionsin the UDRP ................ 199 a. CreationalChecking Functions ................ 199 b. External Checking Functions .................. 201 c. Internal Checking Functions .................. 210 C. Checking Functions in MinisterialDecision-Making Systems and in the UDRP ........................ 213 1. Checking Functions in MinisterialDecision-Making System s ..................................... 213 2. Misplaced and Inadequate Ministerial Checking Functions in the UDRP ................ 215 D. Checking Functions in InternationalAdjudication and in the UDRP ............................... 218 1. Checking Functions in InternationalAdjudication .. 218 2. Misplaced and InadequateAdjudicatory Checking Functionsin the UDRP ........................ 223 a. CreationalChecking Functions ................ 224 b. External Checking Functions .................. 225 c. Internal Checking Functions .................. 230 II. EXTENDING THE NON-NATIONAL MODEL OF LAWMAKING AND DISPUTE SETTLEMENT ............. 237 A. Replicating the UDRP:Are Technological Monopolies Essential? ........................... 238 2001] DESIGNING NON-NATIONAL SYSTEMS 143 B. Designing Checking Functionsfor Non-National Systems ........................... 242 1. The Importance of Legitimacy ................... 244 2. Deliberative Construction in a Non-NationalEra: The Case for Speed ............................ 245 3. InstitutionalReform: Refurbishing Non-National Lawmaking ........... 248 4. HorizontalNon-National Relations: Competitive Federalism ........................ 250 5. Vertical Non-NationalRelations: A UDRP Appellate Body? ....................... 251 6. Relations Between Non-Nationaland NationalSystems ............................. 253 a. Subsidiarityand Deference ................... 255 b. Choice of Law in Non-National Systems ......... 260 c. Relative Influence of Different National Legal Systems .............................. 266 7. Relations Between Non-National and International Systems ..................................... 268 CONCLUSION ....................................... 274 144 WILLIAM AND MARY LAW REVIEW [Vol. 43:141 INTRODUCTION The rapid development of digital technologies is profoundly altering the means by which transborder disputes are settled and, in turn, how rules governing transborder activity are developed. A defining characteristic of digital technologies is their ability to transcend territorial boundaries, thereby challenging the unfettered jurisdiction of any single nation-state and complicating the appli- cation and enforcement of existing legal rules. Disputes implicating such technologies account for an increasingly significant portion of commercial litigation, and digital commerce has become a central feature of contemporary economic activity. National governments and private parties have thus come under pressure to find new ways to cut through the complex, cross-border disputes of the type that digital technologies engender. Can existing lawmaking and dispute settlement mechanisms handle these growing pressures? The number of institutions operating outside the confines of national borders have become more numerous and heterogeneous in the last decades of the twentieth century. Indeed, their growth appears ex- ponential.1 Whether created by governments2 or by private 1. See ALAN REDFERN & MARTIN HUNTER, LAW AND PRACTICE OF INTERNATIONAL COMMERCIALARBrTRATION44-58 (1999) (discussing profusion of venues for institutional and ad hoc arbitration); Jonathan I. Charney, Is InternationalLaw Threatened by Multiple InternationalTribunals?, 271 RECUEILDES COURS 101, 121-23 [COLLECTED COURSES OFTHE HAGUE ACADEMY OF INTERNATIONAL LAW] (1999) (discussing recent growth in number of international courts and tribunals); Laurence R. Heifer, Forum ShoppingforHumanRights, 148 U. PA. L. REv. 285, 298-99 (1999) [hereinafter Heifer, Forum Shopping] (discussing expansion of fora in which international human rights claims can be reviewed). 2. Dispute settlement institutions created bygovernments include permanentjuridical bodies expressly empowered to hear claims concerning violations of treaties and more informal quasi-judicial tribunals or review bodies, whose interpretive and remedial powers are more ambiguous. Compare, e.g., Statute of the International Court of Justice, Oct. 24, 1945, 59 Stat. 1055 (establishing International Court of Justice), and Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, [hereinafter DSU], and Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO Agreement]; and Legal Instruments-Results of the Uruguay Round, Annex 2, LEGAL INSTRUMENTS-RESULTiS OF THE URUGUAY ROUND, 31, 33 I.L.M. 112 (1994) (establishing WTO dispute settlement panels and Appellate Body), and Convention for the Protection of Human Rights and Fundamental Freedoms as amendedbyProtocoINo. 11, Eur. T.S. No. 155 (establishing permanent European Court of Human Rights), with, e.g., Optional Protocol to the International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, G.A. Res. 2001] DESIGNING NON-NATIONAL SYSTEMS 145 parties,' however, international dispute settlement mechanisms (broadly construed as encompassing classical international,4 supranational,' and anational6 mechanisms) share a common characteristic, one that might be termed "deliberative construction." International dispute settlement mechanisms do not spring up 2200,21 U.N. GAOR, Supp. No. 16, at 52, 59, U.N. Doc. A/6316, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (establishing U.N. Human Rights Committee), and International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195, 212-38 (entered into force Jan. 4, 1969) (establishing the Committee on the Elimination of Racial Discrimination). 3. Institutional and ad hoc
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