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Supplementing the Complaint to Request a Three Member Rather than a One Member Panel

The Panel in Facebook, Inc. v. Amjad Abbas, DME2010-0005 (WIPO July 13, 2010) addresses an issue of first impression, namely whether a complainant can change its mind after electing a one member panel. The issue has two branches, whether A) the Center (meaning the administrative wing of the Provider) has power to allow amendment of the complainant’s first designation before referring it to the one member Panel? And B) a Panel has Power to allow an amendment of a party’s panel designation after referral? As a general rule governing arbitration proceedings, the arbitrator has the power to resolve procedural as well as substantive issues within his jurisdiction.

In Facebook, the Panel concluded that it had the power to reach a decision on the procedural issue but not the jurisdiction to accept the Complainant untimely request to change panel designation. “The Panel’s starting point in coming to [the] view [that the Center has no such power], is that the Policy is intended to provide a quick, relatively inexpensive dispute resolution system. Timeframes are accordingly short.” The reasons for this is that the “choice between a single-member panel and a three-member panel is an important step in the dispute resolution process.” The “first question is whether the Center has power to accept an amendment to a complainant’s panel designation made in its Complaint after formal notification of that Complaint to the Respondent and commencement of the administrative proceeding.”

In the Panel’s view, the Center has no such power. The reasons for this lies in the intended tempo of the UDRP proceeding. Given its “‘fast-paced’ character … the Panel considers it unlikely that the framers of the Policy intended to give the parties the ability to delay the proceeding by changing their panel elections if they wished to do so.” “Once a response has been received, the Center only has five working days (where neither party has designated a three-member panel) to appoint a single panelist (Rules, paragraph 6(b)), and the Panel when appointed only has fourteen days (absent exceptional circumstances) to give its decision. The Panel is required to conduct the proceeding fairly, but with “due expedition” (Rules, paragraph 10(c)).”

The “more compelling” interpretation of the Rules is “that the reference to ‘elected’ in [] paragraph [6(b) of the Rules]refers only to the parties’ elections made in their initial filings – if in the complaint and the response both parties have designated a single member panel, then ‘neither the Complainant nor the Respondent [would have] elected a three-member Panel’, and paragraph 6(b) would apply.” The Complainant’s interpretation would “pointless waste quite a lot of time.” “Any interpretation of the Rules which would open the door to that possible outcome seems unlikely to be correct.”

On the second branch of the issue, whether the designated one member Panel can refer the case back to the Center is equally incorrect. The Panel’s authority is no greater than that which the Policy grants. “There is nothing in the Rules which contemplates a (sole) panelist directing the appointment of a three-member panel.” “More fundamentally, the appointment of panels is a function of the Provider under the Rules, and this Panel considers that his jurisdiction could not extend to directing the Center on the kind of panel it should appoint. The most he could reasonably do would be to recuse himself, and invite the Center to reconsider the question of panel appointment. But there would be no point in doing that if the panel believed, as this Panel does, that the Center has no power to allow the Complainant to change its election.”

Levine Samuel, LLP <researchtheworld.com>
Gerald M. Levine <udrpcommentaries.com>
E-Mail gmlevine@researchtheworld.com

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