ICANN certified providers are solely reponsible for appointing UDRP panels. Sole member Panels are appointed by the Provider. The practice differs from commercial arbitration where providers distribute a list of candidates from which parties are invited to make their selections. In those cases the provider appoints a jointly selected candidate to hear and deter mine the dispute. For a three-member commercial arbitration Panel, the presiding panelist is chosen by the Provider. For three-member UDRP panels Rule 6(e) of the Rules of the Policy empowers each party to nominate a choice of one panelist, but the presiding panelist is chosen from a list created by the Provider. The Rule reads:
In the event that either the Complainant or the Respondent elects a three-member Panel, the Provider shall endeavor to appoint one Panelist from the list of candidates provided by each of the Complainant and the Respondent…. The third Panelist shall be appointed by the Provider from a list of five candidates submitted by the Provider to the Parties, the Provider’s selection from among the five being made in a manner that reasonably balances the preferences of both Parties….
There is no provision in the Policy or Rules to disqualify an appointee or a nominee, but it is a common practice in commercial arbitration for a party to apply to the Provider to disqualify an appointee where the evidence shows (i) partiality or lack of independence; (ii) inability or refusal to perform his or her duties with diligence and in good faith, and (iii) any grounds for disqualification provided by applicable law. Quoted from American Arbitration Association, Commercial Arbitration Rules, Rule 17(a). Rule 17 (b) continues: “Upon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive.”
There is no reason why this practice should not apply in a UDRP proceeding and succeed if the evidence establishes a basis for disqualification. In Two Way NV/SA v. Moniker Privacy Services, LLC / : Domain Administrator, D2012-2413 (WIPO June 7, 2013) Complainant moved for disqualification, but the Provider saw “no evidence of material conflict as such and accordingly we will proceed to invite party nominated co-panelist candidates as provided under the Rules.” Complainant’s argument rested on the assertion that Respondent’s counsel had previously nominated the same nominee in other UDRP cases; therefore he had “a financial interest in as much as possible finding in favor ‘counsel for Respondent and its clients’.” An application for disqualification must rest (as it does in commercial arbitration) on submission of evidence (not speculation) that establishes a material conflict. Dissatisfied with the denial of disqualification, Complainant renewed its request to the Panel on the same grounds. It raised an issue as to whether the Panel had jurisdiction to rule on disqualification of its members. The Panel ruled that it did not.
Two earlier decisions are cited in Two Way NV/SA, Britannia Building Society v. Britannia Fraud Prevention, D2001-0505 (WIPO July 6, 2001) (sole Panel); and Kathleen Kennedy Townsend v. B. G. Birt, D2002-0030 (WIPO April 2002) (3-member Panel). Both decisions recognized that there was nothing in the Rules or Supplemental Rules that directed answered the question of disqualification or jurisdiction of the Presiding Panelist if referred to the Panel. The Panel in Kathleen Kennedy held that “even if the Presiding Panelist had such jurisdiction, he would decline to exercise it, because such exercise would be inappropriate and unseemly.” The majority in Two Way NV/SA found the reasoning in Kathleen Kennedy Townsend, supra. persuasive as it applies to 3-member Panels:
[T]aken as a whole, the characteristics of the dispute resolution process implemented by the Policy and Rules mean that it is not appropriate to read into the Policy a basis for such a challenge which is certainly not there in express terms.
The Two Way NV/SA decision rests not on it being “inappropriate and unseemly” but more logically on lack of jurisdiction “to rule on a Request for Recusal of a fellow Panelist.” Kathleen KennedyTownsend.
Mr. Levine is the author of a treatise on trademarks, domain names, and cybersquatting, Domain Name Arbitration, A Practical Guide to Asserting and Defending Claims of Cybersquatting under the Uniform Domain Name Dispute Resolution Policy. (2015, 558 pages). Learn more about the book at Legal Corner Press. Available from Amazon and Barnes & Noble. Ongoing Supplement here