Recent Case Notes & Commentary

SETTLEMENT AND COMPROMISE BEFORE THE DECISION: BUT WHEN IS A DECISION A DECISION?

It's not as straightforward as you may think!



The harsh realities of life often result in a domain name case being settled by agreement between the parties. Thus, the case will not go as far as the Panel reaching a decision and the decision being published and implemented because the case is settled. Sometimes as panellists (especially where it is a three-person panel and the domain name is a valuable one or the issues are complicated, and you could never tell which way the decision might go) we are still cogitating over our decision when we receive news from the provider of the arbitration service that the case has been settled and the parties want the case terminated. That type of case is straight forward and panels then play their part with the provider of the arbitration services to have the proceeding terminated.


Such a case is straightforward because there is an express Rule that covers it.


The rule is UDRP Rule 17(a) which provides:


“If, before the Panel’s decision, the Parties agree on a settlement, the Panel shall terminate the administrative proceeding... [1]".


The first thing to notice about that rule is that it speaks of a settlement occurring before the Panel’s decision. Therefore, if the case is settled after the decision, the proceeding cannot be terminated, at least not by this means.


The second thing to notice about the Rule is that it is mandatory, as the word “shall” is used.


The question we have been thinking about here, and which has arisen in a few cases, is what happens if the settlement is made, or at least if news of the settlement comes to the panel, after it has done its work and in effect made a decision, at least a practical decision, but before the provider has finished its formatting of the “draft” decision and, consequently, before the decision has been published.


As is known, the degree of formatting that a provider does, varies from provider to provider; some merely look at the layout and matters such as spelling mistakes.


Other providers on occasions go further and might make suggestions about the text of the decision that the panel might consider and make to its decision. In other words, the provider regards the decision as being very much a draft decision, and not a decision, until the provider has done its formatting and its proposals have either been accepted or rejected by the panel.


We do not think it appropriate to give the names of cases where the draft of the decision has been with the provider for formatting when the settlement is made, but such cases have occurred. For example, take the case where, before the decision is published and notified to the parties, the parties reach a settlement and agree that the complainant will buy the domain name from the respondent, whereupon the domain name is to be transferred to the Complainant, likely for a substantial sum.


We understand that there is debate between Panellists about whether the decision should be published, despite the settlement or whether the proceeding should be terminated, relying on Rule 17 (a) of the UDRP. The point is made by some that the rule provides that the Panel shall terminate a UDRP proceeding if the parties agree on a settlement before the Panel’s decision. That school of thought then argues that the settlement in the case in question was made not before the decision, but after it because, although the draft had been sent to the provider by the Panel for formatting, the decision had been made in every practical sense. Thus, if the settlement occurred after the Panel sent its decision to the provider for formatting, but before the decision was “finalised” and published, the panel had made its decision and Rule 17(a) is not applicable.


The rival school of thought says that given the parties had come to a mutually beneficial resolution to their dispute, it would be tempting to label this debate much ado about nothing, because the decision had not been made in reality by the time the settlement occurred. This view certainly raises significant issues about the role of the Panel and Provider in coming to a final decision, and the proper implementation of the UDRP itself. If the decision is in the hands of the provider when the settlement is announced to the provider and the Panel is still formatting it, this second school of thought says that the decision has not been made; all there is, is a draft that the Panel has sent to the provider and that is not a decision, or at least not yet. This view says that the provider is not holding a decision but something more akin to a draft simply being sent for review. Accordingly, it would be fine to terminate the proceedings pursuant to Rule 17(a).


So, when indeed is a decision, a decision? Is it when the panel finishes cogitating amongst themselves and sends off their findings to the provider for formatting? Or is it when the provider returns the formatted document to the Panel, the Panel accept or reject any amendments and the decision is published? Is following such a conclusion departing too far from the policy itself, which among other things, says that the Provider must send the decision on to the parties within 3 business days of receiving it (Rule 16(a))?


Some observers also say that the problem with the second school of thought is that it is unnecessary and simply frustrates an agreement that the parties want, that they have agreed on and on which they have usually obtained legal advice. In any event, if such settlement agreements lead to the proceeding being terminated, which is what the parties want, we can only hope that they live happily ever after. But we leave it to you to think about.

 

[1] i.e. the UDRP claim