[bc-gnso] RE: DRAFT FOR REVIEW: BC comment on ACDR's proposal to serve as a UDRP provider

Sat Mar 23 17:36:36 UTC 2013

As the author of the draft statement that has now received some objections, let me say that I appreciate and respect the viewpoints and concerns  that have been expressed by BC members, and also very much appreciate the offer by Mahmoud to participate in a call with BC members. I viewed my role as deviating as little as possible from the BC's prior position in preparing a draft, which would then be subject to comment from BC members. Indeed it has, and it's clear that a somewhat different approach may be the preference of BC members.

It seems to me that there are two separate issues before us:

1.       The application of ACDR to provide UDRP arbitration services.

2.       The need for some enforceable mechanism by which ICANN assures - as we witness inevitable applications from additional organizations to provide UDRP arbitration services, in an altered gTLD universe of more than 1,000 new extensions as well as IDNs - that the UDRP is administered in a UNIFORM manner by all providers and that we do not witness divergent approaches to UDRP jurisprudence from different providers in different regions. This is important not just for registrants but for trademark holders who want assurance that their IP rights will receive equivalent treatment by all providers.

While the ACDR is seeking accreditation in part due to the advent of Arabic gTLDs they will in no way be limited to adjudicating cases involving IDNs - indeed, their projection of 600 cases annually during their start-up period would indicate that they could well decide more than one-tenth of all UDRP cases at current filing levels.

Setting aside my rapporteur hat, issues that the entities I represent on the BC would seek to have addressed as we engage in dialogue with ACDR would include the means by which the 15 listed panelists who have no prior UDRP adjudication will receive training in contemporary UDRP practice (focused on the WIPO 2.0 guidelines, which are the only authoritative source of case precedents that I am aware of), and how ACDR will assure that cases are randomly assigned amongst all its panelists (to avoid a situation like the NAF's continued assignment of about half its caseload to just five percent of its listed panelists). I look forward to that discussion and expect it to be quite constructive.

Finally, I greatly  appreciate Marilyn's suggestion that the BC advocate "that ICANN establish a process, involving all existing providers, and representatives from users of the UDRPs, drawn from the Constituencies and ALAC and other relevant parties, to undertake development of a uniform set of standards for approval of UDRP providers.  This should include a public comment process."

-- as well as her suggestion for this language -

The BC proposes that the Board direct staff to undertake a process, supported by the community of stakeholders and all UDRP providers, to establish uniform rules and procedures and flexible means to delineating and enforcing arbitration provider responsibilities.

An approach like that would decouple and continue to pursue the need for ICANN to adopt a mechanism to assure uniform UDRP administration from the immediate question of the ACDR application to provide UDRP services.

Best regards to all,
Philip

Philip S. Corwin, Founding Principal
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From: owner-bc-gnso at icann.org [mailto:owner-bc-gnso at icann.org] On Behalf Of Marilyn Cade
Sent: Friday, March 22, 2013 6:07 PM
To: Steve Delbianco; bc - GNSO list
Subject: RE: [bc-gnso] RE: DRAFT FOR REVIEW: BC comment on ACDR's proposal to serve as a UDRP provider

Steve, thanks.

I read the offer of a call to discuss and answer questions from BC members regarding the actual application with great interest. Can we prioritize that so that we are informed before a revised position?  I know that time is short before China, but perhaps this can be a priority?

Also, as Gabi and Mahmoud both suggested a discussion on what the standards should be, shouldn't we include that in our discussion?

I should note that I just traveled to Dubai to the ICANN MIG WORKS - Multistakeholder Works/Arab IGF Consultation and went onto MENA ICT Week. The interest in the region for  .arab in both Arabic and ASCII is high. I understand ICANN also just held meetings in Africa, Latin America, Singapore, S.Korea.

The BC should expect a high interest in LATIM, Africa, and MENA and Asia for IDN registrations.

Having qualified UDRP providers from the regions that are committed to IP rules is a critical part of protecting the Security, stability and reliability of the DNS.

I see this as an opportunity for the BC, and was impressed that both Gabi and Mahmoud welcomed the BC discussion on retroactive standards. Clearly, we cannot do that alone as the BC, but we could be a catalyst.  Could this be a joint activity with the NPOC and IPC, for instance?

But first, of course, we should have our own discussions about what kinds of requirements are needed and can be enforced.

I look forward to joining a call with the applicant to clarify and discuss outstanding issues, and further discussion on this matter.

Marilyn Cade

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From: sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>
To: bc-gnso at icann.org<mailto:bc-gnso at icann.org>
Subject: Re: [bc-gnso] RE: DRAFT FOR REVIEW: BC comment on ACDR's proposal to serve as a UDRP provider
Date: Fri, 22 Mar 2013 21:52:34 +0000
By my count, there are 5 objections to the draft comment. (Cade, Szlak, Lattouf,  Halvorsen,  Andruff)

As I said when circulating the draft:
However, if 10% of BC membership objects or proposes changes to the prior positions expressed here, we'll hold a call to consider changing the present BC position.  We have until 13-Apr to debate and develop a new position, if it comes to that.  Keep in mind that any vote to change positions would require a majority vote of BC members.   (per Charter section 7.3)
We have 46 members in good standing at this time, and 5 objections meets the 10% threshold.  I will ask Bene's help to schedule a call to discuss amending the position.  We have until 13-Apr to submit.

From: owner-bc-gnso at icann.org<mailto:owner-bc-gnso at icann.org> [mailto:owner-bc-gnso at icann.org] On Behalf Of Steve DelBianco
Sent: 21 March, 2013 04:56
To: bc - GNSO list
Subject: [bc-gnso] DRAFT FOR REVIEW: BC comment on ACDR's proposal to serve as a UDRP provider

Attached is a draft comment from the BC regarding ICANN's call for comments on ACDR's proposal to serve as a UDRP provider (link<http://www.icann.org/en/news/public-comment/acdr-proposal-01mar13-en.htm>).   The initial comment period ends 22-Mar and reply comments close 13-Apr.  (UDRP is the Uniform Domain Name Dispute Resolution Policy)
Note: ACDR is the Arab Center for Domain Name Dispute Resolution, and is affiliated with BC Member Talal Abu-Ghazaleh.
Phil Corwin volunteered as rapporteur for these comments.
As mentioned on our member call last week, this draft does not propose any changes to previous BC positions.   Instead, the attached comment repeats the BC position expressed twice before:
2011:  BC comments on Preliminary Issue Report on current state of the UDRP (link<http://www.bizconst.org/Positions-Statements/BC_on_UDRP_Issues_Report_July_2011.pdf>)
2010:  Business Constituency comment on recognizing new UDRP providers (link<http://forum.icann.org/lists/acdr-proposal/msg00004.html>)
The 2010 BC position on ACDR's initial application was that the BC could not support any accreditation of additional UDRP providers until ICANN developed a standard and enforceable mechanism to assure  uniformity in UDRP administration. BC members should note that non-support is distinct from outright opposition.
We are taking comments on this draft until midnight 21-Mar with plan to submit on 22-Mar.  In my view, there is no requirement for formal voting since the BC is not taking any new positions in this draft.
However, if 10% of BC membership objects or proposes changes to the prior positions expressed here, we'll hold a call to consider changing the present BC position.  We have until 13-Apr to debate and develop a new position, if it comes to that.  Keep in mind that any vote to change positions would require a majority vote of BC members.   (per Charter section 7.3)
--
Steve DelBianco
Vice chair for policy coordination
Business Constituency
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