Designing non-national systems: the case of the uniform domain name dispute resolution policy.

• Author: Helfer, Laurence R.

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 application 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 exponential. (1) Whether created by governments (2) or by private parties, (3) however, international dispute settlement mechanisms (broadly construed as encompassing classical international, (4) supranational, (5) and anational (6) mechanisms) share a common characteristic, one that might be termed "deliberative construction." International dispute settlement mechanisms do not spring up overnight. Instead, they are carefully built, often with agonizing slowness, through a process of give-and-take among negotiators wrangling over the subject matter of disputes, the procedures for adjudicating them, the identity of parties who can bring claims, and the authority of the decision makers who will rule on those claims. (7)

Deliberative construction also allows governments and private parties the time to create checking mechanisms to control the power of international dispute settlement decision makers and to maintain the fidelity of those decision makers to the goals of the institution's founders. These checking mechanisms, in turn, prompt decision makers to adopt methodologies that internalize those goals. Deliberate speed thus serves to legitimize international institutions, which lack the intrinsic authority of national institutions of democratic states. (8)

Yet even when slowly and carefully built, international dispute settlement structures still intrude on national sovereignty by supplanting (or rivaling) the role of national courts or the use of national laws as rules of decision. And parties to international disputes often have a choice of venues where their controversy might be decided. (9) As a result, international institutions exert only a tenuous hold on actors, and maintaining legitimacy and the appearance of legitimacy is crucial to their success. (10) The jurists, arbitrators, and experts who serve on international dispute settlement bodies are aware of these concerns and respond to them by adopting incrementalist decision-making strategies. That is, they typically seek to build their authority slowly by paying careful attention to the written agreements that created them and by adhering closely to the mandates given by those who constructed the institution. (11) In addition, it often takes years for a functioning dispute settlement institution to reach maturity, attracting a steady diet of cases and developing a reputation as a place where controversies can be handled fairly and effectively. (12)

For social activity such as digital commerce that reinvents itself on a daily basis, however, reliance on leisurely processes to address transborder issues is particularly inapt and inept. Yet any attempt to establish too swiftly an institution to resolve such conflicts, or the too rapid enhancement by such an institution of its powers to deal with the new issues raised by digital activity, would clash with the deliberative construction and incrementalist decision-making qualities that have historically characterized international dispute settlement. Far more ominously, such efforts also may subvert both the legitimacy of international systems and the ability to create checking mechanisms that constrain the authority of dispute settlement decision makers.

In this Article, we address the challenge confronting private parties and

governments seeking to resolve the problems of inherently transborder activity such as that generated by digital technologies. (13) We explore and critically assess the rapid growth of a new form of lawmaking, which we call "non-national," (14) that has developed contrary to the traditional premises of deliberative construction and incrementalist decision making and that, in less than two years, has established itself as the leading exemplar for resolution of transborder problems. (15) The Uniform Domain Name Dispute Resolution Policy (UDRP or the Policy) was promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN) (16) in late 1999 to govern a narrow class of conflicts between domain name registrants and trademark owners. (17) The UDRP is a new legal creature unlike any of its international dispute settlement antecedents. It is a hybrid system containing an amalgam of elements from three decision-making models--judicial, arbitral, and ministerial--and it draws inspiration from international and national legal systems. However, neither the UDRP's substantive content nor its prescriptive force necessarily depend upon the laws, institutions, or enforcement mechanisms of any single nation-state or treaty regime.

It should come as no surprise that intellectual property law is providing the paradigm for new legal regulation of the transborder issues raised by digital technologies. Nowhere is the pressure to devise new lawmaking and dispute settlement mechanisms more keenly felt than in intellectual property law. (18) Intellectual property rights are at the heart of cyberspace: they protect the computer code that forms the architecture of cyberspace, the text, images, and sounds that comprise the bulk of on-line content, and the symbols that guide consumers through the maze of e-businesses. (19) However, the very same technologies that make intellectual property rights an increasingly pervasive part of a digitally networked world also enable infringements of those rights on a massive scale, generating new tensions between intellectual property owners and users over the allocation of legal entitlements and the proper definition of legitimate, noninfringing on-line activities.

Yettheinternational intellectual property system has historically, and paradoxically, been territorial in nature. Rather than developing a worldwide dispute resolution mechanism or a globally uniform intellectual property code, states that are parties to the major intellectual property treaties adopted a more decentralized approach during more than a century of incremental treaty revisions. They consigned the day-to-day enforcement of intellectual property rights to private party actions before national courts applying treaty-inspired domestic intellectual property laws and conflicts rules. (20) Serious and systemic treaty breaches were reserved for state-to-state dispute settlement mechanisms, such as the one now operated under the auspices of the World Trade Organization. (21) Such a system may function effectively when the key acts relating to intellectual property ownership and infringement can be localized within a particular national jurisdiction, but it is ill-suited to address the kinds of fast-developing, multi-jurisdictional conflicts that digital technologies can engender. (22) Indeed, the speed with which transborder conflicts now arise, both in the intellectual property context and elsewhere, suggests that a leisurely pace of lawmaking and institution building may simply be inadequate to the challenges at hand.

Precisely because of its departure from preexisting (and slower) models of lawmaking, the UDRP has received widespread press coverage and public scrutiny. (23) It has already been touted by scholars and policy makers as a model for settling cyberspace intellectual property disputes generally (24) (including digital copyright), (25) and even for all Internet-related disputes. (26) Demand to extend the UDRP is likely only to increase as the pressures of globalization and the digital economy render traditional forms of lawmaking less practical and less normatively compelling.

At present, (27) however, the UDRP covers only a narrow segment of the myriad of intellectual property disputes currently percolating in cyberspace. In essence, the UDRP establishes fast and inexpensive on-line procedures (28) that allow trademark owners to recapture domain names held by persons who register and use domain names containing those marks in bad faith. (29)

Although the substantive content of the UDRP raises important issues of intellectual property law, we are concerned primarily with the process by which the UDRP was created, the way in which it is operating, and the conditions necessary for its replication. (30) Therefore, while recognizing the important interconnections between substance and process, Part I provides an historical overview of the UDRP's genesis: from the initial proposal by a consortium of Internet stakeholders, to its advocacy by the United States government, to its study by the World Intellectual Property Organization (WIPO), and the final revisions and implementation by ICANN. We also explain in Part I how the UDRP evolved from three different decision making models: adjudication, arbitration, and ministerial decision making. Although the drafters of the UDRP chose this hybrid structure to suit the needs of its inherently transborder setting, they did not foresee that the blending of these three systems would produce a confused mandate for UDRP...