ICANN Bid To Make Verisign Arbitrate -- A Hiding to Nowhere?
Date: Monday November 22 2004, @12:19PM
Topic: Lawsuits and Judicial Decisions
A friend writes:
Did you have time to look at ICANN's attempt to move its dispute with Verisign into International Chamber of Commerce (ICC) arbitration?
There is a fatal flaw in the .net arbitration clause, which can be qualified as "pathological" (blame Touton). The award is not final, since either party can appeal the arbitration award to national courts. So it is not an arbitration clause at all in the sense of the New York Convention.
ICC will surely take the case (prima facie validity) and refer it to a panel, who will issue a non-binding award (an expert determination).
Then the whole thing starts all over again.
Thus, the attempt to stay the ".com" litigation pending arbitration re ".net" should be dismissed out of hand. Rather, it would make sense for Verisign to petition the arbitrators in ".net" to stay their proceedings pending resolution of ".com" in the California courts.
By introducing these procedural tangles, ICANN is merely increasing its legal bills.
Sounds plausible to me.
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