If you're a respondent in a UDRP case, Davis will always give you a principled fair shake. However, Cabell will find blindly for you -- unless the domain offends her (Example:
http://www.adrforum.com/domains/decisions/96219.htm).
The centre doesn't care one way or the other who wins. The only people who can possibly be biased are the panelists. However, there is no "win" for a panelist who finds consistently for the complainant. The vast majority of complaints seek single-member panels. The only place where bias is built in is on the respondent side.
Most panelists have no deep desire to be chosen again and again. Most of them are full-time lawyers making $300-$600 per hour. A UDRP decision should take about 10 hours to complete. That means they get $75 per hour. It isn't worth it.
On the other hand, if you have a low-paying job and you can get *consistently* chosen by respondents, it can be quite profitable. Sorkin, for example, has been a panelist 256 times. That's almost $200,000 in panelist fees. If you look at his ludicrous logic in many of his cases, it sure seems to be strong circumstantial evidence that he would like to make that $300,000. Cabell seems to have figured that out too.
I agree that the UDRP needs tweaking. Good luck getting ICANN to do anything. However, here are some ways I would fix it:
Initiation of a Complaint:
1) Complaints are filed with just a "notice of complaint" and a minimal filing fee.
2) Respondent gets 30 days to either surrender or give a notice that he intends to challenge the complaint when filed.
3) If respondent defaults or surrenders, domain is transferred without a decision, but domain must remain with current registrar for a certain period of time so that if the respondent had an excusable reason for failing to respond, the case can be reopened.
Next Phase
1) Complainant files formal complaint with $1500 filing fee.
2) Respondent files response with $1500 filing fee.
3) One Supplemental filing to respond to matters in response are allowed as a matter of right to each party.
4) All complaints go to a single-member panel who is assigned randomly or in order (like regular court cases).
5) Winner gets his filing fee back.
6) RDNH has teeth. Complainant found to bring a case that constitutes RDNH must pay the Respondent the respondent's actual reasonable attorneys fees. Failure to follow through means that complainant may not bring another UDRP action until fees are paid.
Appeal
1) Either party can appeal to a three-member panel, which is also randomly assigned.
2) Appealing party must post a bond.
3) Winner still gets filing fee back. If Appellant loses, bond goes to Appellee to cover Appellee's filing fees.
4) If the majority of the panel finds that the appeal was frivolous, Appellant must pay Appellee's attorneys fees as well as filing fees.
Panelists
1) Panelists must handle an equal amount of cases for single-member proceedings.
2) Each party may have one peremptory challenge of the panelist assigned in the initial single-member proceeding.
3) In appeals, each side chooses just like they do now in three-member panel proceedings. Presiding panelists are assigned randomly or in order. Both parties get one peremptory challenge to a panelist.
4) If a panelist is overturned more than a certain number of times in a certain period of time, that panelist shall be suspended from being chosen for appeals for a certain period of time. (This means that extremists on both sides will be filtered out of the appeal process and they will eventually filter out of the process altogether)
