The appeal against a UDRP decision: the BAMC?
Emily Rose Trust had to transfer the domain name uglyhousesri.com following UDRP proceedings (NAF, FA2003001889990, HomeVestors of America, Inc. v. Emily Rose / NCRS, May 20, 2020). As of May 29, 2020, this company made an “appeal” to the Board Accountability Mechanisms Committee (BAMC) of the Internet Corporation for Assigned Names and Numbers (ICANN) with the entirely illusory purpose:
“1. Vacate the UDRP Decision; or
2. Review the UDRP proceeding pleadings and “render [ICANN’s] own decision”; or
3. “[A]ppoint an unbiased Panelist who upholds all the core values of ICANN [and who will] render [a new] unbiased decision.” (ICANN BAMC, Summary Dismissal of the Board Accountability Mechanisms Committee Reconsideration Request 20-2, July 16, 2020).
The means are awkward and inappropriate. Indeed, the ICANN Bylaws (icann.org) do not contain any provision giving the BAMC any power to review UDRP decisions. Indeed, paragraphs c) and d) of Section 4.2. of the Bylaws define the scope of the BAMC’s jurisdiction:
“(c) A Requestor may submit a request for reconsideration or review of an ICANN action or inaction (“Reconsideration Request“) to the extent that the Requestor has been adversely affected by:
(i) One or more Board or Staff actions or inactions that contradict ICANN’s Mission, Commitments, Core Values and/or established ICANN policy(ies);
(ii) One or more actions or inactions of the Board or Staff that have been taken or refused to be taken without consideration of material information, except where the Requestor could have submitted, but did not submit, the information for the Board’s or Staff’s consideration at the time of action or refusal to act; or
(iii) One or more actions or inactions of the Board or Staff that are taken as a result of the Board’s or staff’s reliance on false or inaccurate relevant information.
(d) Notwithstanding any other provision in this Section 4.2, the scope of reconsideration shall exclude the following:
(i) Disputes relating to country code top-level domain (“ccTLD“) delegations and re-delegations;
(ii) Disputes relating to Internet numbering resources; and
(iii) Disputes relating to protocol parameters.” (icann.org)
On substantive jurisdiction, paragraph c) does not include the review of UDRP decisions. One could argue that paragraph d) does not exclude such a review by the BACM. However, it is also necessary to consider the subjective and objective criteria that define the competence of this body, the second being the corollary of the first. Regarding the subjective test, Section 4.2., Paras. c) and d) mean the ICANN Board of Directors and the “staff”. By “staff,” the Bylaws mean “employees and individual long-term paid contractors serving in locations where ICANN does not have the mechanisms to employ such contractors directly” (section 4.2.a)). In other words, there must be a subordination link between ICANN and the author of the action/inaction. However, third-party decision-makers, who made UDRP decisions and other decisions of the same nature, do not belong to any of the categories indicated in section 4.2.a). Additionally, the principle of independence that governs their function prohibits subordinating them to any authority, not even to the dispute settlement institution that appoints them (in this case, the National Arbitration Forum). As to the objective criterion, Section 4.2., Paras. c) and d) refers to acts or inactions of the ICANN Board of Directors or staff reporting to ICANN. However, for the reasons just outlined, UDRP decisions do not fall into this category. Consequently, the BACM had no choice but to declare itself incompetent.
Therefore, what are the remedies against a UDRP or similar decision? The rules governing the UDRP procedure do not provide for any appeal or revision proceedings. Furthermore, the UDRP proceeding is not equivalent to arbitration, and the decision cannot be qualified as an arbitral award. Knowledge of the nature of the UDRP is essential because, under the competence-competence principle (which is admitted in most countries which have a law or case law favorable to international commercial arbitration), any appeal to the judicial authority would be excluded. As a result, the party displeased with a UDRP decision can start a judicial proceeding before the competent state court. The latter will rule both on the merits (if necessary, by applying the law of the UDRP and/or the relevant trademark law) and on the aspects related to the right to a fair trial.