section 4(d)

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

Apologies for the late submission.  

One DNSO & staff suggestion is particularly worrying: sec. 4(d), the
suggestion WIPO should draft substantive rules that would displace or
supplement otherwise applicable national law.

I think in light of the content of WIPO's attempt to draft such principles
in RFC 3, which I deconstructed in
http://www.law.miami.edu/~amf/critique.htm (see especially paragraphs
155-167), WIPO's ability to act as a neutral body in this area can
reasonably be questioned.

But never mind that. Here's a practical reason why it is unworkable:  If
the arbitrators use rule set A, and courts use rule set B, then the
incentive to appeal if you lose under rule set A but would be better off
under B is enormous. Much better to have arbitrators do their very best to
use the same rule set as the relevant court would use.  Otherwise anyone
with funds who would have been better off under B will go to court.  Rule
set A will still apply to people who don't have the funds to go to law
even if they would be better of under B -- one justice for the rich,
another for the poor.


-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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