[CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

Thu Mar 5 00:46:16 UTC 2015

+1
and Jacob, I recall with the utmost ease that you were instrumental in
introducing me to the ICANN process.
RD
On Mar 4, 2015 3:38 PM, "Erika Mann" <erika at erikamann.com> wrote:

> Exactly Jacob. Thanks for looking into this.
>
> Erika
>
> On Wed, Mar 4, 2015 at 8:02 PM, Jacob Malthouse <jacob at bigroom.ca> wrote:
>
>> Paragraph 129 (attached) is a good reminder that the bottom-up process is
>> itself an accountability mechanism, where many often disparate parties have
>> the opportunity to come together and agree on, or disagree with, something.
>> Any appeals system needs to sit within that unique ICANN context.
>>
>> [image: Inline images 1]
>>
>>
>>
>> Jacob Malthouse
>> Co-founder & Director, Big Room Inc.
>> 778-960-6527
>> http://www.bigroom.ca/
>>
>> On 4 March 2015 at 05:36, Erika Mann <erika at erikamann.com> wrote:
>>
>>> Yes Mathieu, I will talk to Beck. I had a chat with her already but need
>>> to talk to her again.
>>>
>>> Thanks,
>>> Erika
>>>
>>> +32 498 12 13 54
>>>
>>> On Wed, Mar 4, 2015 at 11:09 AM, Mathieu Weill <mathieu.weill at afnic.fr>
>>> wrote:
>>>
>>>>  Dear Erika,
>>>>
>>>> This kind of insights would be very valuable indeed ! Can I suggest you
>>>> liaise with Becky as WP2 rapporteur ? Enhancing the review / redress
>>>> processes is very high on Becky's group agenda right now so she can
>>>> certainly use your help and insights.
>>>>
>>>> Best
>>>> Mathieu
>>>>
>>>> Le 04/03/2015 10:54, Erika Mann a écrit :
>>>>
>>>> Avri, Colleagues - Happy to develop a first draft proposal for input/
>>>> review based on WTO processes, taken into consideration the ICANN specific
>>>> obligations and values.
>>>>
>>>>  Can do a first draft next week.
>>>>
>>>>  Erika
>>>>
>>>> On Wed, Mar 4, 2015 at 9:44 AM, Avri Doria <avri at acm.org> wrote:
>>>>
>>>>>  Hi,
>>>>>
>>>>> I think this is an excellent idea and have heard it suggested before.
>>>>> Might be good to have someone lay out the features of the procedure.
>>>>>
>>>>> avri
>>>>>
>>>>>
>>>>>
>>>>> On 04-Mar-15 08:54, Erika Mann wrote:
>>>>>
>>>>>  Reviewing the comments made in this email thread, I refer in
>>>>> particular to Chris LaHatte's comment, posted below. I think he is right,
>>>>> we need to establish a dispute resolution system that values each case
>>>>> based on its individual parameters - keeping international law parameters
>>>>> and DNS specific legal parameters into consideration. My idea always was to
>>>>> 'copy' the WTO dispute settlement procedure. It is sufficient flexible,
>>>>> keeps involved complainants and third party interests in balance and it
>>>>> must respect global public interest parameters as well. I have 15 years
>>>>> experience in this area, happy to help.
>>>>> Erika
>>>>>
>>>>>
>>>>>  (From Chris LaHatte) "Accountability and a general
>>>>> sense is already being fully discussed. However the more difficult
>>>>> issue is
>>>>> designing a dispute resolution system which has the flexibility to
>>>>> discuss
>>>>> the issues graphically illustrated by this case. Do we want to set up a
>>>>> quasi-judicial system within ICANN with a level of review or appeal?
>>>>> Should
>>>>> we try and harmonise all of the existing review systems so that there
>>>>> is a
>>>>> common procedure and a review/appeal level?"
>>>>>
>>>>> On Wed, Mar 4, 2015 at 7:54 AM, Chris Disspain <ceo at auda.org.au>
>>>>> wrote:
>>>>>
>>>>>> Hi Bruce,
>>>>>>
>>>>>>  From my understanding  - the complainant basically wants the
>>>>>> decision from the string similarity panel that found .hotels and .hoteis to
>>>>>> be similar to be reviewed again on its merits.   Neither the
>>>>>> Reconsideration Process or IRP is currently designed to do this.    I
>>>>>> assume that the applicants for .hotels and .hoteis would want the ability
>>>>>> to make submissions and perhaps both would agree that there is not a  risk
>>>>>> of consumer confusion because the two strings address different markets
>>>>>> (English speaking versus Portuguese speaking etc).   The applicants could
>>>>>> even agree on a process to avoid confusion between the two strings.   e.g.
>>>>>> some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were
>>>>>> managed by the same registrant - but have content in different languages.
>>>>>>
>>>>>>
>>>>>>  Absolutely. And if you’re correct then the review would be of the
>>>>>> merits of an independent panel decision. Whilst such a review mechanism
>>>>>> seems equitable to me I think the key point is that this would need to be
>>>>>> built in to a future new gTLD process, presumably arising from policy
>>>>>> review and recommendations of the gNSO. Thus, I’m unsure that the
>>>>>> real issue in this case can be solved by the work of the CCWG.
>>>>>>
>>>>>>  I think we are all keen to see the processes and appeal mechanisms
>>>>>> improved.
>>>>>>
>>>>>>
>>>>>>  100% agree. And that is work that I think the CCWG can do.
>>>>>>
>>>>>>
>>>>>>
>>>>>>  Cheers,
>>>>>>
>>>>>>
>>>>>>  Chris
>>>>>>
>>>>>>  On 4 Mar 2015, at 17:42 , Bruce Tonkin <
>>>>>> Bruce.Tonkin at melbourneit.com.au> wrote:
>>>>>>
>>>>>> Hello Chris,
>>>>>>
>>>>>>
>>>>>>  And, as a separate question, in respect to your comments below
>>>>>> about mechanisms that go directly to the merits of a decision, what
>>>>>> decision would that apply to in this case?
>>>>>>
>>>>>>
>>>>>> From my understanding  - the complainant basically wants the decision
>>>>>> from the string similarity panel that found .hotels and .hoteis to be
>>>>>> similar to be reviewed again on its merits.   Neither the Reconsideration
>>>>>> Process or IRP is currently designed to do this.    I assume that the
>>>>>> applicants for .hotels and .hoteis would want the ability to make
>>>>>> submissions and perhaps both would agree that there is not a  risk of
>>>>>> consumer confusion because the two strings address different markets
>>>>>> (English speaking versus Portuguese speaking etc).   The applicants could
>>>>>> even agree on a process to avoid confusion between the two strings.   e.g.
>>>>>> some mechanism that would ensure that Hilton.hotels and Hilton.hoteis were
>>>>>> managed by the same registrant - but have content in different languages.
>>>>>>
>>>>>> I could see how this could be built into a future new gTLD process.
>>>>>>
>>>>>> e.g the String Similarity panel could first identify strings that are
>>>>>> potentially confusing and should be in a contention set - e.g. .hotels and
>>>>>> .hoteis.   Then a separate panel could be convened (perhaps with three
>>>>>> panellists) to consider the case on its merits taking submissions from both
>>>>>> parties and any other interested members of the global public.
>>>>>>
>>>>>> Another common scenario  we have seen is where third parties (ie
>>>>>> non-applicants, and not ccTLD managers or gTLD operators) have disputed
>>>>>> that two strings should have been found as similar but were not  - e.g.
>>>>>> .car and .cars.   Again such a situation could perhaps be appealed to a
>>>>>> larger panel to consider on its merits - I would assume those bringing the
>>>>>>  dispute would have some standing to raise the issue - e.g. perhaps the Car
>>>>>> Industry etc. - on the basis that they could be materially affected by
>>>>>> having the two strings.
>>>>>>
>>>>>> I think it is important to remember that this was a major program
>>>>>> that was rolled out and there are lots of learnings.   Part of being
>>>>>> accountable is to address those short-comings in the next release of the
>>>>>> process.   We have been very careful about changing the rules of the
>>>>>> process while it is underway.   It is not that dissimilar to planning
>>>>>> processes for building approvals etc.   When a new area of a city is
>>>>>> released for development - the rules may need to be changed to prevent
>>>>>> undesirable developments that were not originally foreseen (e.g. buildings
>>>>>> too tall, or buildings not fireproof, earthquake proof etc).   However the
>>>>>> changes need to be made through a community consultation process - rather
>>>>>> than the Board imposing new or changed rules along the way.
>>>>>>
>>>>>> I think we are all keen to see the processes and appeal mechanisms
>>>>>> improved.   I have personally spent many hours reviewing reconsideration
>>>>>> requests.   As  a general rule for every loser in the panel and dispute
>>>>>> process - this has resulted in reconsideration as the cost to reconsider
>>>>>> versus the cost to apply  for a new gTLD was very low.   In quite a few of
>>>>>> those you could see fairly clearly that the right decision had been made on
>>>>>> its merits, and in other cases I could see how a different panel might make
>>>>>> a different decision on its merits.    Most of the reconsideration requests
>>>>>> spend most of their submission arguing the merits of their original case -
>>>>>> and few have been able to identify errors in the process.
>>>>>>
>>>>>> Regards,
>>>>>> Bruce Tonkin
>>>>>>
>>>>>>
>>>>>>
>>>>>> _______________________________________________
>>>>>> Accountability-Cross-Community mailing list
>>>>>> Accountability-Cross-Community at icann.org
>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>>>
>>>>>> _______________________________________________
>>>>>> Accountability-Cross-Community mailing list
>>>>>> Accountability-Cross-Community at icann.org
>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>
>>>>>>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Accountability-Cross-Community mailing listAccountability-Cross-Community at icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>   ------------------------------
>>>>>     <http://www.avast.com/>
>>>>>
>>>>> This email has been checked for viruses by Avast antivirus software.
>>>>> www.avast.com
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Accountability-Cross-Community mailing list
>>>>> Accountability-Cross-Community at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> Accountability-Cross-Community mailing listAccountability-Cross-Community at icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>
>>>>
>>>> --
>>>> *****************************
>>>> Mathieu WEILL
>>>> AFNIC - directeur général
>>>> Tél: +33 1 39 30 83 06mathieu.weill at afnic.fr
>>>> Twitter : @mathieuweill
>>>> *****************************
>>>>
>>>>
>>>> _______________________________________________
>>>> Accountability-Cross-Community mailing list
>>>> Accountability-Cross-Community at icann.org
>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>
>>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150304/7d420dc9/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: https___www_icann_org_en_system_files_files_final-declaration-03mar15-en_pdf.png
Type: image/png
Size: 183732 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150304/7d420dc9/https___www_icann_org_en_system_files_files_final-declaration-03mar15-en_pdf.png>