Re: [ICANN-EU] The real challenge for all of us as candidates

["Roberto Gaetano" <roberto_gaetano@hotmail.com>]

Andreas,
>
> >I really believe that we need something different than "offline law" to
> >handle these issues. We cannot rely to the normal courts, and the only 
>way
> >is to have a dispute resolution mechanism, binding by contract, that will
> >ensure that policy is respected.
>
>
>This violates basic democratic understanding.
>You are arguing to force everybody into a new jurisdiction without
>seperation of powers.


What I mean is that, as today, the issues related to domain name dispute 
resolution, and related in general to new technologies, e-commerce, etc. 
need legal instruments that are adapted to this reality.
I think, for instance, about the speed of decision: it will not make sense 
to take a decision about redelegating a domain after a trial that lasts for 
months or years.
I also think about the specific knowledge needed by the judges to appreciate 
the peculiar details (technicals, but not only) of these new environments.

There is no violation of democratic principles whatsoever, because the 
ability to engage in a "normal court process" stands unchanged. What I am 
trying to say (moreover not being a lawyer) is that it is adviseable to 
establish by contract a set of rules that will be used for the sole purpose 
of conflict resolution. Obviously, the right to go to court still stands.
There are already a lot of similar examples, like ethic rules in a 
professional guild, the sports justice, and so on. Situations in which the 
rules are established not by law but by (private) contract, subscribed by 
the parts, and enforced by administrative courts of the specific association 
(the professional guild, the specific sport federation, or whatever). This 
provides a "very first" level of judgement. Then, if necessary, you still 
have the normal law.
What whould be clear is that the first does not "replace" the other, it just 
provides a first level "on top" of the other, but overruleable by the other.


>
> >But the next step is that clear policy has *really* to be established, 
>and
> >the rulings have *really* to be conformant to the established policy. We
> >cannot accept that a case will have different winners/losers depending on
> >the personal opinions and interpretations of tha arbitrator.
>
>Every policy, every law leaves room for interpretation. And as long as
>people
>make mistakes (incl. judges, juries or arbitrators) the way for advancement
>is to have different courts with different decisions to learn from. Of
>course
>that requires the chance to appeal.
>All this is basic for a functioning system of policy or law.
>Your words sound like dictatorship to me.
>Monopolistic power should never be placed in hands with these opinions.


It all depends on the level of "flexibility of interpretation".

The layman must be reasonably sure of what a certain rule or law means, as 
to make it reasonably predictable whether a certain behaviour will cause a 
sentence of "guilty" or "innocent".
Of course, when the matter is new, some contradictory sentences may be 
expected in the initial phase, but then the interpretations should 
"converge".
What I am asking for is a system in which the assessment on who is right and 
who is wrong in cases like the "barcelona.com" depends more on the 
principles laid out than on the personal interpretation of the judges.

This has, IMHO, very little to do with dictatorship but rather with the 
basic law principle of "certitudo juris".

Regards
Roberto

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