'The Evolution of Precedent in Mandatory Arbitration - Lessons from a Decade of Domain Name Dispute Resolutions' by Andrew Christie & Fiona Rotstein in (2011) 30(1)
The Arbitrator & Mediator 65-74
notes that -
In just over a decade, the international system for mandatory arbitration of domain name disputes has disposed of more than 30,000 disputes, between parties from more than 150 countries, in short timeframes and at low cost. Despite the absence of an appellate body and a doctrine of stare decisis, the system has evolved a comprehensive and largely noncontroversial body of precedent, that provides clear guidance to parties on most of the legal and procedural issues involved in a domain name dispute. This paper explores both why and how, exactly, such a sophisticated precedential system has evolved voluntary, and identifies the lessons that may be drawn from this experience for other arbitration systems.
The authors conclude that -
The implementation of the doctrine of precedent in the curial system of dispute resolution requires three features: published past decisions, a rule requiring decision-makers to follow past decisions, and an appellate body to enforce the rule. Neither traditional arbitration nor non-traditional arbitration exhibits all three features. At most, only the first feature is present in arbitration systems. Nevertheless, it is undeniable that some non-traditional arbitration systems have evolved into de facto precedential systems. The UDRP, the mandatory arbitration system for resolving domain name disputes, is a paradigm of this.
What lessons can be drawn from the decade of experience of the UDRP about the relevance of precedent to arbitration generally? It is argued that two key lessons can be identified. The first lesson is that arbitrators, for wholly rational reasons, will desire to obtain the outcomes of a precedential system. That is, arbitrators rationally desire to operate a system that is transparently fair to the parties, that is efficient for them as decision-markers, and that maintains the integrity of the system. Consequently, arbitrators will voluntarily seek to comply with the principle of stare decisis, even when there is no formal requirement to do so let alone a mechanism to enforce such compliance.
The second lesson is that arbitral service providers have a critical role to play in enabling arbitrators to achieve this outcome. While publishing arbitral awards is a necessary condition for a de facto precedential system, it is most likely not a sufficient condition – at least when there is a substantial body of awards to form the corpus of precedents. Once the body of awards becomes unmanageably large such that no individual could realistically expect to read and understand all the awards, it will be necessary for arbitral service providers to produce value-added resources for accessing the jurisprudence of the body of awards. Ultimately, it may be necessary for the service provider to produce an ‘informal’ codification of that jurisprudence.
