[Gnso-igo-ingo-crp] Draft pros/cons document for Recommendation #4, Options 1 & 2

Thu May 25 14:46:08 UTC 2017

Some thoughts on the document that was circulated last week:

For Option 1:
------------------

(i) "What would be the advantage of vitiating the initial panel
determination in such a case? Does this mean that the registrant can
transfer the domain once the lawsuit is filed?"

Vitiating the UDRP decision only takes place if the IGO successfully
asserts immunity (thereby terminating the lawsuit). Vitiating the UDRP
decision thus maintains the "status quo" as if the UDRP had never been
filed. The IGO can then decide whether to pursue other kinds of
actions (e.g. voluntary arbitration, voluntary mediation, or
intervention by national authorities).

Second sentence doesn't make sense. Filing the lawsuit preserved the
status quo (registrar lock/hold) with the registrar, and kept the
registrant the same (i.e. that of the original domain name registrant,
who was the respondent of the UDRP, and complainant in the lawsuit).
Nothing happens until the lawsuit is concluded (and any/all available appeals).

(ii) "What are the implications of saying that merely filing a court
complaint means an otherwise legally-valid panel determination is now
void and has no legal effect? What can/must the registrar do in such
an instance?"

The mere filing of a court complaint doesn't do anything. IGO has to
make a decision as to whether to assert immunity, and await the
court's determination as to whether to accept that defense to the
court action. Registrars must wait until the court has made a
final determination. i.e. only the court can order a transfer of the domain
name (i.e. which is what one would expect, if the UDRP didn't exist),
as well as any/all available appeals.

(iii) "Risk that since the Mutual Jurisdiction clause remains
unchanged, a court could rule that an IGO has already waived its
immunity by agreeing to the Mutual Jurisdiction clause in the first
place."

This "risk" exists for both scenarios. i.e. for both options 1 and 2, they
only discuss what happens after successfully asserting immunity. If
immunity is not asserted, or the immunity defense is asserted but
fails, neither alternative is in play. Neither option proposes to
touch the existing mutual jurisdiction clause.

(iv) Another benefit of Option 1 is that it ensures that national laws
(including all legal arguments and precedents available to domain name
registrants) are interpreted by those most qualified to hear them,
namely active judges of those national courts. In arbitration, those
hearing the matters are by definition less qualified, since they are
not active judges of the relevant jurisdictions.

(v) Another benefit of Option 1 is it discourages forum shopping by
IGOs, whereby IGOs can unfairly select a venue where the playing field
is tilted in their favour.

(vi) The most important benefit of Option 1 is that it ensures the
supremacy of the courts. ICANN has to follow the law, and not make up
its own laws that replace the courts. Choosing anything but option 1
creates a dangerous precedent which will encourage others to come to
ICANN to create policies inconsistent with, and that override,
national laws.

For Option 2
------------------
(i) "Consistent with the requests from the GAC and the IGOs"

If we're going to claim that this is a "benefit", then one should add
a comparable benefit to Option #1, i.e. "preserves rights of
registrants to fundamental rights of access to national courts"

(ii) "Familiar and commonly used in commercial transactions (including
many IGO contracts)" -- I disagree that this is a "benefit". Lawsuits
are also "familiar" and "commonly used" in commercial transactions.

(iii) "Does not trigger difficult legal questions about the legal
implications of vitiating a panel decision (per Option 1)."

I don't understand this point at all. There are no "difficult legal
implications" of vitiating a panel decision. It simply preserves the
status quo, as if the UDRP didn't exist. The order of the UDRP panel
is set aside, and both sides can consider their options from a blank
slate.

(iii) Another disadvantage of Option 2 is the lack of full public
scrutiny, transparency and accountability, due to lack of full access
to arbitration pleadings/documents, unlike courts which operate under
the "open court principle."  Furthermore, decisions under Option 2
create no "precedents" that can be cited in national courts, unlike
real court cases. This is important, given that any disputes that
trigger either Option 1 or Option 2 are going to be over high value
domain name, the ones most likely to be vigorously contested, and thus
the ones that have the greatest potential in creating precedents for
others if they are contested in courts.

(iv) Another disadvantage of Option 2 is lack of multiple appeal
privileges, as exist in national courts. e.g. with court cases in
Canada, the first court level might be the Ontario provincial courts,
the second level might be the Ontario Court of Appeal, and the third
level would be Supreme Court of Canada. With option 2, there is just 1
level, the binding arbitration. Multiple appeals help ensure the
correct decision is ultimately realized.

(v) Another important disadvantage of Option 2 is the potential divergence
between arbitration decisions and those of the underlying national
courts, with no opportunity to reconcile them. As we've seen, courts
routinely overturn UDRP decisions, demonstrating that access to the
courts is essential to protect registrants from the whims of
arbitrators who ignore national laws and precedents. With option 2,
rogue/extremist panelists would be emboldened to persistently and
permanently deviate in their rulings from the relevant national laws,
since there would be no mechanism of having their decisions
circumscribed by those laws.

(vi) Another disadvantage of Option 2 is that the UDRP/URS "test" would
become de facto law (as would the remedies, i.e. transfer or
cancellation), whereas a court is free to award money damages,  grant
injunctive relief to stop a particular confusing usage (but allow one
to retain the domain name for other uses), etc. or find a different legal
test,  according to its own national laws. This is a crucial point,
since the UDRP/URS  were not designed to replace the national laws.

(vii) Another disadvantage of Option 2 is it would take away rights
for existing domain name registrants (which can be reduced somewhat,
if Option 2 only applied to new gTLDs, or to domains with a creation
date after the implementation of any new policy changes).

In conclusion, I'd reiterate my previous comments at:

https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/msg00004.html

Sincerely,

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

On Wed, May 17, 2017 at 5:26 PM, Mary Wong <mary.wong at icann.org> wrote:
> Dear Working Group members,
>
>
>
> Please find attached a preliminary draft document that staff has prepared
> pursuant to the group’s request on the call last week. The document attempts
> to summarize the benefits and disadvantages of recommending either Option 1
> or Option 2, in relation to the IGO immunity question and the appropriate
> handling of further proceedings based on an initial UDRP/URS panel decision.
>
>
>
> As this is a “living document”, please let us know what your comments and
> any additional pros/cons are. We can also put the document into a Google Doc
> format if that will make it easier for everyone to comment and edit.
>
>
>
> Thanks and cheers
>
> Mary
>
>
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp