Kent Crispin wrote:
> Of *course* the WIPO draft "contemplates"
> things beyond current law -- that's the whole point. The question is
> whether the draft specifies things that can't be implemented because
> they would *contradict* current law. For example, contractually
> mandated ADRs are completely consistent with current law, but they
> are also beyond the current law.
>
Here is what the public interest advocate on the WIPO panel of experts has to
say on this subject. He is, by the way, unlike Crispin, a law professor:
"As WIPO itself admits, �It is recognized that ... questions may be raised in
certain jurisdictions regarding the validity and enforceability of such a
mandatory procedure, particularly in light of consumer protection laws, due
process considerations and the fact that it purports to create rights for a
party who is not privy to the domain name registration agreement.� RFC 3, para.
144. In fact, the proposed agreement is completely one-sided, fundamentally
unfair to consumers, and likely to undermine values of free expression. Recent
case law demonstrates that there is a good chance that a US court would find
such an arbitration agreement contained in an adhesion contract to be
unconscionable when applied to a consumer and refuse to enforce it. I would
certainly urge it to do so."
