[Gnso-igo-ingo-crp] Attempt at Achieving Full Consensus -- Option #4

[George Kirikos]

Hi Mary,


On Wed, Jul 19, 2017 at 11:48 PM, Mary Wong <mary.wong at icann.org> wrote:
> If I may, I’d like to follow up on Phil’s note below, where he refers to the language of the UDRP (among other factors) to highlight the fact that the original panel decision will remain to be enforced in a case where an IGO successfully pleads jurisdictional immunity in the national court to which the losing respondent has chosen to submit the dispute.

Let's be specific --- enforced by.....registrars, via ICANN's
policymaking requirements.

> Although staff supporting this Working Group cannot claim to be international arbitration experts, it has seemed to us for some time that ICANN has no legal authority to nullify a panel’s decision (e.g. simply by adding a further provision to the UDRP and URS to that effect in the event the IGO and respondent end up in court). By going beyond its legal authority, ICANN may even be viewed as unduly interfering with the conduct and outcome of the mandatory administrative proceeding.

That doesn't make any sense at all. ICANN created the UDRP in the
first place, and can certainly modify what the outcome means (i.e. its
implications and how it is enforced by registrars, see above), and
whether it can be nullified. UDRP isn't some independent "law" in
itself that some other body created, that has a life of its own.
Furthermore, as has been pointed out numerous times, UDRP is not an
arbitration, nor an international arbitration.

The UDRP is premised upon the Complainant making an undertaking that
it will submit to the jurisdiction of the courts. That's the price a
complainant pays to use the procedure. ICANN can certainly delineate
what should happen (i.e. what obligations a registrar has) should the
complainant violate that undertaking by trying to assert that they're
not subject to the jurisdiction of the courts (i.e. immunity), perhaps
successfully, in a subsequent court case.

By the argument above, what "legal authority" (which is now argued to
be very limited) use to impose the UDRP on registrants in the first
place? What mechanism exists to opt out? The courts do not look kindly
upon contracts of adhesion......

> Where an IGO successfully pleads jurisdictional immunity as against a losing domain name registrant/respondent, this means in effect that the case cannot go forward as the court will not be able to hear the case. It is therefore reasonable to conclude that, in such a case, the original panel decision has to stand and the domain in question transferred or canceled, as the case may be.

"Reasonable" according to who? Not reasonable in the eyes of a
registrant, who sees the UDRP complainant (IGO) violating the
undertaking that was made when using the UDRP procedure in the first
place. It's more reasonable to penalize the violation of that
undertaking by nullifying the outcome of the UDRP, to ensure the
supremacy of the courts and availability of national law, which are
fundamental rights for domain name registrants to due process which
appear in the Universal Declaration of Human Rights (Article 8).

http://www.un.org/en/universal-declaration-human-rights/index.html

"Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted
him by the constitution or by law."

and also Article 17(2).

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/