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

[George Kirikos]

Hi Mary,

On Thu, Jul 20, 2017 at 12:03 PM, Mary Wong <mary.wong at icann.org> wrote:
> Just to clarify that the staff concern is not about the UDRP or the language therein; rather, it stems from the assumption in Option 1 that a legally enforceable panel decision can be set aside by decree/decision/policy amendment of ICANN. It’s actually a separate point from what ICANN can bind Contracted Parties to do via contract and the “picket fence” of ICANN Consensus Policy. In other words, even if the UDRP as a Consensus Policy were modified along the lines of Option 1, yes that would be binding on all Contracted Parties, but it would in our view nevertheless still be something that may be legally questionable.

You use the term "a legally enforceable panel decision". That "panel"
isn't a court itself. If an IGO thinks they can "enforce it", where
would they go? They'd need to go to a court (giving up immunity), to
try to get that enforced against the registrar/registrant, or have
ICANN do so. i.e. in other words, it's not something created by
independent law -- it's just a procedure ICANN created.

ICANN could create a procedure whereby domain disputes are decided by
flipping a coin. That procedure isn't a creation of some independent
law outside of ICANN that compels the registrar/registrants -- it's
only enforceable via the ICANN created contracts with registrars,
registrants, etc.

A modification of that procedure (to void it under certain
circumstances), also by ICANN is certainly equally as enforceable as
the original was enforceable.

> Nothing in the UDRP takes away a person’s legal rights – however, declaring that a panel decision is voided when there has not been either an arbitral appeal or court hearing to determine the merits of that decision may.

The inferior UDRP panel decision (not at the level of due process of a
real court) is being voided specially *because* it hasn't been vetted,
subjected to the full scrutiny and due process of a real national
court. i.e. the rights to due process are so important, that in the
absence of that full legal procedure, the inferior panel decision is
disregarded (that's also why any actual legal case is "de novo",
ignoring the outcome of the 'adjudication-lite' UDRP panel).
Furthermore, the IGO would have violated its undertaking, the price it
paid to access the UDRP, to get to that position, which is another
reason to void the decision.

One metaphor (albeit, in a somewhat reverse situation) is when a will
specifies that an heir who legally challenges that will in court gets
nothing (a "no-contest clause"). Option #1 is slightly different (and
less controversial than a no-contest clause), in that it's saying that
someone who **opposes** such an attempt at judicial appeal, especially
as they originally agreed to allow that appeal to heard in the courts,
gets absolutely nothing. (i.e. voided UDRP decision, nullfied, etc.).
That's not an unreasonable outcome.

Sincerely,

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