Recently, assessments of the performance of the Uniform Domain Name Dispute Resolution Policy (UDRP) have stressed the need for institutional and procedural reforms relating to issues such as forum shopping, panel selection, and pleading rules. Far less attention, however, has been paid to a different set of issues critical to assessing the UDRP's performance: its relationship to national courts and to national intellectual property laws. There are three different ways in which this relationship might evolve to change the present structure and functions of the UDRP. First, the UDRP might be made more autonomous in character, transforming it into a body of non-national rules and procedures distinct from any one nation's laws and largely insulated from review in national courts. Second, the UDRP might become more Americanized by interpreting its substantive rules in harmony with U.S. statutes and case law, and by funneling judicial challenges to panel decisions into U.S. courts. Third, the UDRP might be made more cosmopolitan, enhancing the influence of a diverse array of national laws and legal institutions and generating new modes of interaction among national and non-national legal systems. This Essay explores these three evolutionary pathways and the critical questions each presents for institutions such as the Internet Corporation for Assigned Names and Numbers (ICANN) and the World Intellectual Property Organization (WIPO), for national lawmakers and national courts, and for those advocating procedural reforms of this new dispute settlement system.
Laurence R. Helfer, Wither the UDRP: Autonomous, Americanized or Cosmopolitan?, 12 Cardozo Journal of International & Comparative Law 493-505 (2004)