[Gnso-igo-ingo-crp] A clean appraisal regarding NGOs

[George Kirikos]

Hi folks,

I was re-reading the UDRP Rules today (see another email coming
shortly re: Option #6), and noticed there *might* be a way to
resuscitate Paul Keating's Option #5, which was premised on the
asymmetry between paragraph 3(b)(xiii) [Complainant] and paragraph
5(c)(viii) [Respondent] of the Rules:

https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en

where the Rules don't require the Respondent to agree to the
equivalent of the first part of 3(b)(xiii), i.e.

""Complainant agrees that its claims and remedies concerning the
registration of the domain name, the dispute, or the dispute's
resolution shall be solely against the domain-name holder and waives
all such claims and remedies against (a) the dispute-resolution
provider and panelists, except in the case of deliberate wrongdoing,
(b) the registrar, (c) the registry administrator, and (d) the
Internet Corporation for Assigned Names and Numbers, as well as their
directors, officers, employees, and agents."

However, as I noted previously, UDRP providers are putting back the
"missing" language into their Supplemental Rules instead.

But, the UDRP Rules actually provide us with a definition of
"Supplemental Rules", namely:

"Supplemental Rules means the rules adopted by the Provider
administering a proceeding to supplement these Rules. Supplemental
Rules shall not be inconsistent with the Policy or these Rules and
shall cover such topics as fees, word and page limits and guidelines,
file size and format modalities, the means for communicating with the
Provider and the Panel, and the form of cover sheets."

So, I think it could be argued that by inserting those additional
words into the Supplemental Rules, the UDRP providers might be in
violation of the Rules themselves. i.e. the new language doesn't cover
topics such as " fees, word and page limits and guidelines, file size
and format modalities, the means for communicating with the Provider
and the Panel, and the form of cover sheets." Instead, they go much
further, and infringe upon the rights of Respondents to seek claims
and remedies against the parties mentioned in 3(b)(xiii) above.

In other words, one can argue that ICANN didn't "make a mistake" by
not putting in those words, rather it was intentional, to preserve the
rights of respondents to take action against those parties! Thus, any
supplemental rules that attempt to "fix" this are not proper
"supplemental rules" by the definition above! Perhaps those
Supplemental Rules themselves need to be challenged, since they are
inconsistent with the Policy.

As I noted in my prior email, though, one avoids agreeing to those
inconsistent Supplemental Rules entirely by filing a lawsuit
immediately, before making any Response.

Sincerely,

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


On Fri, Jul 14, 2017 at 12:28 PM, George Kirikos <icann at leap.com> wrote:
> Just to followup on my prior email, Paul Keating's suggestion was
> focused on a "post UDRP", where presumably the domain name registrant
> actually responded to the UDRP (and thus was required to complete the
> certification required under the "Rules" --- both ICANN's rules and
> the UDRP provider's Supplemental Rules).
>
> However, as a thought experiment, it seems to me that a domain name
> registrant that *immediately* goes to court after receiving a
> complaint (and doesn't wait until after filing a response, i.e.
> ****doesn't agree***** to the certifications) might be in a much
> stronger position vis-a-vis being able to get a court order against
> the UDRP provider/panelists/ICANN/etc. (although, the agreement
> between the registrar and the registrant, as mandated by the RAA,
> might cause the registrar and/or ICANN to be better shielded from a
> suit)
>
> By the way, it was stated by Paul Keating that there were "In the
> context of a typical UDRP, there are 4 parties that have potential
> control over the remedy – or an interest:" --- I think it could be
> higher, i.e. one might include the registry too, to go over the head
> of the registrar. And, perhaps even ICANN itself.....(although that'd
> be an uphill battle).
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
> On Fri, Jul 14, 2017 at 12:11 PM, George Kirikos <icann at leap.com> wrote:
>> Hi Paul,
>>
>> I believe your suggestion won't work. At first I was hopeful, but
>> here's my "poking" at it.
>>
>> 1. You're absolutely correct that the "certification" for the
>> Complainant vs. the Respondent under the UDRP Rules at:
>>
>> https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en
>>
>> Complainant: 3(b)(xiii)
>> Respondent: 5(c)(viii)
>>
>> are slightly different, in that the first section of the certification
>> for the Complainant doesn't appear in that for the respondent.
>>
>> 2. However, that's not the end of the story. I went back and checked
>> the only UDRP case I was involved with (for the PUPA.com) and did see
>> the equivalent language that is "missing" in the UDRP Rules for the
>> respondent. So, why did my lawyer include it, when it didn't appear at
>> first glance to be required?
>>
>> Consulting the WIPO website:
>>
>> https://www3.wipo.int/amc-forms/en/udrp/eudrpresponse.jsp
>>
>> and looking at the "H. Certification" section, they've put that into
>> their SUPPLEMENTAL RULES, e.g. see paragraph 15 of:
>>
>> http://www.wipo.int/amc/en/domains/supplemental/eudrp/newrules.html
>>
>> "15. Exclusion of Liability
>>
>> Except in respect of deliberate wrongdoing, an Administrative Panel,
>> the World Intellectual Property Organization and the Center shall not
>> be liable to a party, a concerned registrar or ICANN for any act or
>> omission in connection with the administrative proceeding."
>>
>> Nice attempt at "thinking outside the box", though! (that's what
>> spurred my development of Option #4, trying to think deeply about the
>> issues, and come up with "win-win" scenarios)
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>>
>>
>>
>> On Fri, Jul 14, 2017 at 11:41 AM, Paul Keating <Paul at law.es> wrote:
>>> All,
>>>
>>>
>>>
>>> After much consideration a light has suddenly appeared.  We need do nothing
>>> in this case at all.  The answers exist in the current Policy.
>>>
>>>
>>>
>>> Here is a summary of my proposal.  I ask that it be discussed at the next
>>> call and if necessary we retain counsel to determine if it is legally sound.
>>>
>>>
>>>
>>> The current UDRP requires that complainants waive any claim as against the
>>> ADR provider.  There is no similar provision for respondents.  The result is
>>> that Complainants waive claims against that ADR provider.  Respondents do
>>> not.
>>>
>>>
>>>
>>>      Complainants:  (xiii) Conclude with the following statement followed by
>>> the signature (in any electronic format) of the Complainant or its
>>> authorized representative:
>>>
>>> "Complainant agrees that its claims and remedies concerning the registration
>>> of the domain name, the dispute, or the dispute's resolution shall be solely
>>> against the domain-name holder and waives all such claims and remedies
>>> against (a) the dispute-resolution provider and panelists, except in the
>>> case of deliberate wrongdoing, (b) the registrar, (c) the registry
>>> administrator, and (d) the Internet Corporation for Assigned Names and
>>> Numbers, as well as their directors, officers, employees, and agents."
>>>
>>> "Complainant certifies that the information contained in this Complaint is
>>> to the best of Complainant's knowledge complete and accurate, that this
>>> Complaint is not being presented for any improper purpose, such as to
>>> harass, and that the assertions in this Complaint are warranted under these
>>> Rules and under applicable law, as it now exists or as it may be extended by
>>> a good-faith and reasonable argument."
>>>
>>>
>>>
>>> Respondents:  (viii) Conclude with the following statement followed by the
>>> signature (in any electronic format) of the Respondent or its authorized
>>> representative:
>>>
>>>
>>>
>>> "Respondent certifies that the information contained in this Response is to
>>> the best of Respondent's knowledge complete and accurate, that this Response
>>> is not being presented for any improper purpose, such as to harass, and that
>>> the assertions in this Response are warranted under these Rules and under
>>> applicable law, as it now exists or as it may be extended by a good-faith
>>> and reasonable argument."
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> The current UDRP provides for a Mutual Jurisdiction (MJ) designation.  All
>>> complainants MUST designate an MJ. An MJ is (generally):
>>>
>>>
>>>
>>>             Location of registrar per ICANN
>>>
>>>             Location of registrant as stated in the WHOIS
>>>
>>>
>>>
>>> There is some uncertainty as to whether the Mutual Jurisdiction selection
>>> constitutes a waiver of Sovereign Immunity.
>>>
>>>
>>>
>>> An order of an ADR provider must be complied with unless a losing respondent
>>> commences a legal action in the MJ within a 10-business-day period.
>>>
>>>
>>>
>>> The issue with NGOs is that they do not wish to subject themselves to
>>> potential liability of national courts - Sovereign Immunity.
>>>
>>>
>>>
>>> Legally, there are 3 potentially interested parties:
>>>
>>>
>>>
>>> (1) Respondent,
>>>
>>> (2) Complainant (NGO), and
>>>
>>> (3) ADR Provider.
>>>
>>>
>>>
>>> A court may generally only issue orders directing an interested party to do
>>> (or refrain from doing) something.  This might be, “pay the claimant
>>> damages”.  It might be “refrain from doing XXX”.  Very few courts will order
>>> a person to DO something other than pay damages.  Courts are most likely to
>>> order an interested party to NOT DO something.  The reason for this is that
>>> the standard for ordering a person to do something is higher than the
>>> standard to actual NOT do something.  This bears relation to unique legal
>>> issues like specific performance (an order that a party must do something).
>>> Such remedies are rare in the US although more normal in Europe.
>>>
>>>
>>>
>>> What I propose is that we essentially ignore the NGOs in this issue and
>>> instead focus on the other parties having an interest in this issue and thus
>>> subject to the court’s order – the ADR provider.
>>>
>>>
>>>
>>> The current UDRP obligates the complainant to waive claims against the ADR
>>> provider to protect the ADR provider from damages resulting from its
>>> decisions.  There is no similar waiver by the Respondent.
>>>
>>>
>>>
>>> The common practice amongst attorneys is to name any person or entity that
>>> potentially has a relationship to the potential remedy.  This is done so
>>> that the court can issue an order that has the actual force of law.  The
>>> court can only order people to do something if they have appeared before the
>>> court or had an opportunity to do so.
>>>
>>>
>>>
>>> In the context of a typical UDRP, there are 4 parties that have potential
>>> control over the remedy – or an interest:
>>>
>>>
>>>
>>> 1.             Registrant
>>>
>>> 2.             Complainant
>>>
>>> 3.             Registrar
>>>
>>> 4.             ADR Provider
>>>
>>>
>>>
>>> Typically, in post-UDRP an attorney would name as defendants only the
>>> complainant and the registrar.  The reason for this is that in most
>>> post-UDRP decisions the ADR is seen as a neutral party.
>>>
>>>
>>>
>>> However, in US jurisdiction, court orders are often challenged by naming the
>>> court as a defendant.  The purpose of this practice is to ensure that any
>>> appeals court decision is properly directed at the lower court – ordering it
>>> to do (or not do) something.  The most common remedy sought is to invalidate
>>> a prior order of the lower court.  Thus, the lower court is often named as a
>>> real party in interest so that any decision by the appeals court can name
>>> the lower court – ordering it to invalidate or enforce (or modify) its prior
>>> decision.
>>>
>>>
>>>
>>> My proposal recognizes that the ADR provider is a necessary party to any
>>> post-UDRP litigation so that the court can actually order the appropriate
>>> remedy.  As a result, the participation of the NGO in the litigation should
>>> have no legal bearing on whether or not the underlying UDRP decision is or
>>> is not enforced.  Any recognition of the NGO’s sovereign immunity should
>>> only impact whether or not the NGO is liable in any manner to the respondent
>>> (plaintiff).  Thus, a plaintiff who names the ADR provider and Registrar
>>> should be able to obtain a court order granting relief (e.g. a confirmation
>>> that the domain name should not be transferred) without regard to whether
>>> the NGO did nor did not participate in the litigation.  In other words, any
>>> claim by the NGO concerning Sovereign Immunity would have no impact on
>>> whether the domain were transferred.  Indeed its only impact would be to
>>> prevent any order that the NGO do (e.g. pay damages) or refrain from doing
>>> (stop issuing demands) anything.
>>>
>>>
>>>
>>> The point is that  WE DO NOT NEED TO DO ANYTHING  to address the concerns of
>>> the NGOs as presented to the Working Group.
>>>
>>>
>>> Sorry it took me so long to remember basic legal theory.
>>>
>>>
>>> Anyone having an issue with the above analysis PLEASE feel free to poke
>>> holes all over it.
>>>
>>>
>>> Regards
>>>
>>>
>>> Paul
>>>
>>>
>>>
>>>
>>>
>>>
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