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

[George Kirikos]

Hello,

On Tue, Jun 27, 2017 at 9:38 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
> It has been the unanimous view of all attorneys we have consulted ...

A similar statement was made during today's telephone call. This PDP,
and ICANN processes in general, mandate maximum transparency. Citing
unnamed attorneys who are not "on the record" within the working
group, and who've not been formally engaged, who may not be
independent, nor had their work (or questions/scenarios) reviewed by
the working group does not meet the transparency requirements of our
PDP. If I did the same, I'd be criticized, and rightly so, as it would
be improper.

Why should anyone defer to one's "unnamed supporters" or "unnamed
experts" who are not part of this PDP, and ignore the interests of
domain name registrants who are far closer to "unanimous" in wanting
to preserve their rights to court action, to the maximum extent, and
not have the UDRP tamper with those rights? The price of using the
UDRP, as has been stated before, is that one consents to the the
supremacy of the courts, if either party wishes to take it there. If
one wants an Option #5, eliminate the UDRP, and force everyone to use
the court system. If you want to reinvent the UDRP, you'd go back to
what was intended for today -- price of using the "new UDRP" is that
the court system remains supreme.

Let me give a scenario that some might have not contemplated: IGO has
court case set aside due to immunity, according to a judge, and the
domain name transfers to the IGO (i.e. UDRP is followed). However, now
the IGO is subject to the *registration agreement* of that registrar,
and the former registrant (loser of the UDRP) then *immediately* files
a court case following the court case. For Tucows/OpenSRS, the
registration agreement states:

http://www.loffs.com/Domains/Legal/master.html

"11. .... If Registrant or Registrant's domain name becomes the
subject of litigation, Tucows may deposit control of Registrant's
domain name record into the registry of the judicial body by supplying
a party with a registrar certificate."

"29. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF
ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT
REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO
THIS AGREEMENT MUST BE BROUGHT IN ONTARIO AND YOU IRREVOCABLY CONSENT
TO THE JURISDICTION OF SUCH COURTS."

"Irrevocably consent to the jurisdiction" seems like a further and
valid waiver of immunity, to me, perhaps *even stronger* than the
mutual jurisdiction clause of the UDRP.

Anyhow, I look forward to the further productive discussions to try to
achieve a full consensus.

Sincerely,

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