The Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) is an unconventional international IP law because it was not entered into by state parties and it does not involve international obligations by states. This system for resolving domain name disputes was created through what is basically a contractual arrangement agreed to by private persons and non-state actors. Being based on contract, the issues sought to be resolved by UDRP involve private rather than a public law.

The impact of the UDRP on intertional IP law is that it is a cheap, quick and streamlined process for resolving a very narrow kind of domain name dispute – cybersquatting. It serves as a good case study of how there are different possible ways (hard and soft lawmaking,  contract agreements, etc.) to address various forms of IP issues in the international arena.

Using the UDRP, private parties do not have to rely on national laws to protect or enforce their rights. This is all the more surprising given that parties to a UDRP dispute have an option not to be bound by a UDRP decision and seek to relief from their own national courts. So even with the option of bringing the dispute before a national court that will inevitably rule based on a particular national law, parties have generally chosen a non-national based system.

But what is interesting it that a non-stational system is dealing with domain name disputes which are normally “international” issues since they involve parties who reside in different states. Even if a party to a UDRP process opts to pursue a case under his or her national law, the proceeding before a national court will prove to be quite problematic and tedious given such difficulties as the national court acquiring personal jurisdiction over the opposing party who resides in a different state or the court resolving private international law issues like forum non conveniens. Faced with these types of hurdles, it is no wonder that the UDRP is the preferred procedure for resolving domain name disputes.

Even with its success, it may not be wise to transform the UDRP into a treaty because it might be ruined by the very politicized and controversial treaty-making process. Since a treaty would require the agreement of states to incur international obligations and the harmonization of different national cybersquatting and domain name dispute laws, the very simple yet effective system of the UDRP will most probably crumble under the exacting and overbearing scrutiny of the negotiation process among states.

The author is a postgraduate law student at the University of Edinburgh. This post was originally written for a class in International Intellectual Property Law.