The record can be supplemented in two ways, either by the parties submitting supplementary material requested by the Panel under Rule 12 of the Policy or with the Panel’s permission upon the request of one of the parties. Discretionary authority to the Panel is consistent with Rules 3 and 5 that each party is limited to one pleading. However, the two principal providers, WIPO and Nat. Arb. Forum treat Rule 12 differently with respect to supplemental submissions. Nat. Arb. Forum Rule 7 expressly authorizes supplementary submissions. The WIPO Supplementary Rules are silent. However, in its Overview at Paragraph 4.2 WIPO records two views. The Majority view takes the position that panels “have discretion to accept an unsolicited supplemental filing from either party, bearing in mind the obligation to treat each party with equality and ensure that each party has a fair opportunity to present its case.” The Minority view takes the position that “[u]nless the panel specifically solicits a supplemental filing, it will not consider a supplemental filing in its decision.”
Notwithstanding supplementary submissions as of right under Rule 7 some Nat. Arb. Forum panelists have adopted the minority view of the WIPO Overview. This is evident, for example, in HotCam, Ltd. RNIS Telecommunication Inc., FA0907001273417 (Nat. Ar. Forum, August 24, 2009). The campaign against Rule 7 has been carried on principally by two panelists. They frequently cite as authority their previous decisions. The second panelist is the author of the decision in Alain-Martin Pierret d/b/a Bordeaux West v. Sierra Technology Group, LLC., FA 0505000472135 (Nat. Arb. Forum July 1, 2005):
To the extent Supplemental Rule 7 seeks to force a Panel to accept supplemental submissions, it is inconsistent with ICANN’s Rules, and it creates a false expectation among parties that their supplemental materials, prepared on a tight five-day deadline, will be accepted by the Panel. This Panel has previously criticized the as being inconsistent with the Rules, as promulgated by ICANN. Under Rule 12, only the Panel may decide whether to request or accept supplemental submissions. See Elec. Commerce Media, Inc. v. Taos Mountain, FA 95344 (Nat. Arb. Forum October 11, 2000).
The Alain-Mart panelist issued a similar ruling in Town of Easton Connecticut v. Lightning PC Inc., FA0808001220202 (Nat. Arb. Forum, October 12, 2008) and was also a member of the Panel in Elec. Commerce Media cited in the quotation.
While it is technically correct that Rule 7 is inconsistent with Rule 12 of the Rules of the Policy, this position has not attracted general support from other Nat. Arb. Forum panelists other than the one who decided HotCam. The HotCam Panel was also responsible for the decision in Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum April 10, 2006) as well as earlier Am. Online, Inc. v. Thricovil, FA 638077 (Nat. Arb. Forum, March 22, 2006).
