[Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C

Tue Nov 21 16:52:32 UTC 2017

First I would like things to calm down here.

Second, I want to address some comments by Phil indicating that having a
rule that resulted in vitiating the UDRP decision if the IGO successfully
sought dismissal on sovereign immunity grounds somehow treated them
differently than other prevailing complainants in connection with post-UDRP
litigation under 4(k).

This is simply not what was, or continues to be, suggested.  The rule is
limited to the situation in which an IGO obtains dismissal as a result of a
sovereign immunity claim. It does not vitiate the UDRP decision in any other
instance (for example in the situation in which the court dismisses the
litigation because tearer is no independent basis for a claim - e.g. The
yoyo decision int ehUK).

There appears to be a further myth that the Mutual Jurisdiction
certification exposes them to judicial claims in connection with a 4(k)
proceeding.  This is simply not the case.  As a case in point I refer to the
attached case in which the following was stated:

MARCHEX SALES, INC., v. TECNOLOGIA BANCARIA, S.A.,

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Case 1:14-cv-01306-LO-JFA Document 17 Filed 05/21/15

> In filing its UDRP complaint, Tecnologia agreed that it would "submit, with
> respect to
> any challenges that may be made by the Respondent to a decision by the
> Administrative Panel to
> transfer the domain name that is the subject of this Complaint, to the
> jurisdiction of the courts at
> the location of the principal office of the concerned registrar." (Compl. ~
> 16). Plaintiff alleges
> that this court has personal jurisdiction over the defendant because of this
> agreement "to submit
> to jurisdiction of the registrar in connection with a challenge of a UDRP
> decision ordering a
> transfer of the Domain Names." (Compl. ~ 3).
> 
> While it is clear that the defendant has consented to the jurisdiction of this
> court for the
> purposes of challenging the WIPO panel's decision to transfer the subject
> domain names in the
> "Mutual Jurisdiction" clause of the UDRP complaint (Com pl. ~ 16), the relief
> sought by the
> plaintiff in the complaint before this court and in the motion for default
> judgment goes far
> beyond a "challenge" of the WIPO panel's decision. Plaintiff is not only
> seeking a declaration
> that its registration and use of the subject domain names is lawful and proper
> and the domain
> names should not be transferred to the defendant as ordered by the WIPO panel,
> it is also seeking
> an award of damages and attorney's and costs under the Lanham Act.3
> 
> As discussed during the hearing on May I, 2015, plaintiff has not alleged any
> facts that
> would support a finding of personal jurisdiction over this foreign defendant
> for claims other than
> a direct challenge to the WIPO panel's decision to transfer the domain names-
> the only claim
> that the defendant agreed to have litigated in this forum. To allow claims
> other a challenge to
> whether a domain name should be transferred in accordance with a WIPO decision
> to be brought
> against a complainant in a WIPO proceeding based on the mandatory provision
> that the
> complainant submit to jurisdiction of the courts at the location of the
> principal registrar of the
> domain name would greatly and unfairly expand the scope of the agreement and
> the exposure
> that any complainant could face by filing a UDRP complaint.
> 
> The United States Supreme Court has consistently held that "a party can be
> forced to
> arbitrate only those issues it specifically agreed to submit to arbitration."
> First Options of
> Chicago, Inc. v. Kaplan, 514 U.S. 938, 945 (1995). The Fourth Circuit has also
> recognized that
> whether a party has agreed to arbitrate an issue is a matter of contract
> interpretation and that a
> party cannot be required to submit to arbitration any dispute which he has not
> agreed so to
> submit. Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88,
> 92 (4th Cir.
> 1996) (quoting United Steelworkers of Am. v. Warrior Gulf Navigation Co., 363
> U.S. 574, 582
> (1960)). In a similar vein, the UDRP requires the parties to submit to
> arbitration only claims
> concerning the registration of a domain name and a party to a "mutual
> jurisdiction" clause like
> the one required in the UDRP complaint should not be forced to submit to the
> jurisdiction of a
> foreign forum for any claims that it has not agreed to submit. In the mutual
> jurisdiction clause
> relied on by the plaintiff, the agreement is limited to a challenge of a
> decision to the transfer of
> the domain name. It is not a broadly worded agreement whereby the complainant
> agrees to a
> specific jurisdiction for the resolution of all claims between the parties to
> be litigated, or even an
> agreement that all claims arising out of or related to the UDRP complaint to
> be litigated in the
> forum. The language is specific; it involves only a challenge to a panel's
> decision to transfer a
> domain name. To find that such a provision would subject a party to anything
> more than a
> challenge to the panel's decision would be unfair and would be inconsistent
> with the due process
> clause of the U.S. Constitution. While it was not required to address the
> issue directly, in a
> similar action the Fourth Circuit has recognized the argument made by a
> defendant that a court
> lacks jurisdiction regarding any cause of action other than the challenge to
> the panel's decision in
> the UDRP proceeding. Barcelona.com, 330 F.3d at 623.
> 
> For these reasons, the undersigned magistrate judge recommends a finding that
> the court
> has subject matter jurisdiction over this action, that the court has
> jurisdiction over only the claim
> concerning the challenge to the WIPO panel's decision, and that venue is
> proper in this court for
> that claim.

The court went on to disallow any damage claims - limiting its decision only
to a transfer and award of costs.

I continue to STRENUOUSLY oppose any creation of a special system for IGOs
(or others) and incorporate my prior email on this subject which set forth
the lack of any evidence of problem with the existing system.

I believe no action is required as we set forth in the initial report.

As the only compromise, I will only support a proposed change that
incorporates the following within the UDRP which would be a part of the
certification to be agreed to by the Complainant.

If Complainant is an NGO, then Complainant further certifies and agrees

In the event of any post-UDRP litigation brought by a respondent concerning
the domain name
> The NGO successfully seeks dismissal on the basis of sovereign immunity
> And the litigation is dismissed as a result of the granting of the NGO¹s
> motion to dismiss
> The UDRP decision will be vitiated.

Again, this applies in a very limited number of possible situations
involving only NGOs and only then when the case is dismissed because the NGO
asserted sovereign immunity.

Paul Keating

On 11/17/17, 8:26 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via
Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces at icann.org on behalf of
gnso-igo-ingo-crp at icann.org> wrote:

> George:
> 
> This co-chair categorically reject your reckless charge that I have engaged in
> "fear-mongering".
> 
> I regard that as a personal affront. You really should apologize.
> 
> Please stick to the substance ands stop making reckless and unfounded
> allegations about others' motivations.
> 
> As for revelation of how any member voted on our preliminary consensus call,
> those members who wish to reveal how they marked their ballots are free to do
> so -- but we will not violate reasonable expectations of privacy, especially
> when it now clear that support for Option C can expose one to reckless
> charges.
> 
> Philip
> 
> -----Original Message-----
> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf
> Of George Kirikos
> Sent: Friday, November 17, 2017 2:17 PM
> To: gnso-igo-ingo-crp at icann.org
> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal
> poll constituting preliminary consensus call on Options A-C
> 
> I think the comments within this survey are quite telling. Those who are in
> favour of option A (and opposing option C) have very strong and fully
> considered views, which they can explain and support with facts and reasoning.
> Compare that to those expressing support for C (and opposing A/B). They make
> statements like:
> 
> "Fair and balanced" (supporting C)
> "DOA at Council" (opposing A)
> 
> bereft of credible reasoning.
> 
> This demonstrates that it's fear-mongering by the co-chairs and political
> motivations that led some to switch from Option 1 (now Option A) to Option C
> (formerly Option 2), rather than anything based on new facts or new analysis.
> Given this, it explains the refusal by the co-chairs to attach names to those
> who are supporting Option C -- there's no expectation of privacy here ---
> everyone must vote publicly when it comes down to a final consensus call, and
> should have been able to publicly explain why they supported Option C in this
> preliminary survey.
> 
> In the book "Principles" by Ray Dalio that I'm reading, he writes about how
> decisions at Bridgewater go through what's called "believability-weighted
> decision making", see some discussion of that
> at:
> 
> http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9
> 
> I think that is a wise approach, whereby votes that are backed by sound logic,
> facts, experience, and reasoning should be weighted much higher than votes
> that lack those attributes and which are instead fear-driven and thus are not
> believable.
> 
> It's been said that "One man with courage makes a majority." Hopefully it does
> not have to come to that.
> 
> Sincerely,
> 
> George Kirikos
> 416-588-0269
> http://www.leap.com/
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong at icann.org> wrote:
>>  Dear all,
>> 
>> 
>> 
>>  As noted on the Working Group call yesterday, please find attached the
>>  consolidated results of the informal poll that was conducted regarding
>>  Working Group member preferences as among Options A, B and C.
>> 
>> 
>> 
>>  Individual Working Group members  especially those who provided
>>  specific comments as part of their poll response  are invited to add
>>  any relevant background and further thoughts to this email.
>> 
>> 
>> 
>>  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
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20171121/0b93b08a/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Marchex EDVA.pdf
Type: application/pdf
Size: 1337478 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20171121/0b93b08a/MarchexEDVA-0001.pdf>