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

Paul Keating Paul at law.es
Wed Nov 22 17:09:16 UTC 2017 

Peter,

I do wish to point out that the UDRP was not intended to create rights that
did not exist prior to the UDRP.  This is in the founding WIPO report that
was adopted by ICANN with a great deal of grandeur.  The 1999 Report also
stated as a foundational position that respondents were to retain their day
in court.

NGOs existed prior to the UDRP.  Prior to the UDRP the only means by which
they could enforce rights as against a domain name registrant was to
commence litigation (either directly or indirectly via a stalking
horse/assignee, etc).  Pre-UDRP there was no basis for forcing the
respondent into any form of arbitration.

The UDRP was thoughtfully created to grant the right to litigate de novo.
The Policy references such litigation in several places and the consent to
Mutual Jurisdiction is expressly limited to the dispute concerning the
domain name.  From this several sound legal principles have arisen.

1. Policy 4(k) does not itself create an independent right of action. A
losing respondent must still find a statutory basis upon which to rest its
claim.  This has been recognized in virtually all post-UDRP cases including
those in the UK (note the Yoyo decision among others).

2. The Mutual Jurisdiction certification does not extend beyond the reversal
of the UDRP decision.  The certification does not itself grant personal
jurisdiction over the Complainant (now defendant) for any other form of
claim.   This precludes the awarding of monetary damages other than costs
unless there is an independent claim to base it upon or the court has
personal jurisdiction over the Complainant/defendant independently of the MJ
certification.


By creating an independent arbitration process for NGOs you are (a)
contradicting not one but at least two of founding principles of the UDRP.

With all respect, I have yet to see any argument in favor of the positions
currently being promoted by the Chairs ­ other than (a) the Board/GAC/IGOs
want it that way.

And, now that George has surfaced an actual study comparing tech costs of
arbitration to traditional litigation, there seems absolutely no credible
reason to continue to support the private arbitration suggestions.

I invite ANYONE to provide evidence to the contrary.  And by evidence I mean
that ­ not assumptions or beliefs but facts.

Thank you,

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email:  Paul at law.es

 

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From:  Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of
Petter Rindforth <petter.rindforth at fenixlegal.eu>
Reply-To:  <petter.rindforth at fenixlegal.eu>
Date:  Saturday, November 18, 2017 at 12:22 AM
To:  George Kirikos <icann at leap.com>
Cc:  "gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
Subject:  Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll
constituting preliminary consensus call on Options A-C

> Dear George,
> 
> I think you have made it continuously clear that you are in favour of Option
> A. And, as a WG member, you are of course free to explain why you voted for
> Option A.
> 
> However, the fact is that we not just only have a clear majority support for
> Option C (9 supports and 2 that can live with it), compared to Option A (5
> supports and 1 that can live with it), it is also clear that there is a
> majority against Option A (8 does not support), compared to Option C (3 does
> not support).
> 
> This is not just Philip¹s and mine arguments, it is the pure fact.
> 
> I can fully understand that, as in all voting cases, it may sometimes be hard
> to understand why a majority has other thoughts about a specific topic.
> 
> And all WG members had (and have) their freedom to further explain and argue
> their support for a specific solution/option. As you say George, sometimes a
> support for one specified option needs more detailed explanation, where other
> options may be more clear, "fair and balanced".
> 
>  
> 
> As to Option 6: As you may recall, you have made the presentation during our
> WG meetings, and we (the full WG) have discussed it. As you also may recall,
> the conclusion within our WG meetings was that not all courts would accept
> that, independently of what the parties have agreed upon. During last call, we
> invited you to - during the upcoming week ­ provide us (the WG) with your
> suggestion on your proposed specific solution to be added to the current
> description of the arbitration option for consideration by the WG.
> 
> I therefore look forward your specific wording / suggestion on that topic.
> 
>  
> 
> All the best,
> 
> Petter
> 
> 
> -- 
> Petter Rindforth, LL M
> 
> 
> Fenix Legal KB 
> Stureplan 4c, 4tr
> 114 35 Stockholm 
> Sweden 
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> Direct phone: +46(0)702-369360
> E-mail: petter.rindforth at fenixlegal.eu
> www.fenixlegal.eu
> 
> 
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> Thank you
> 
> 
> 17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann at leap.com>:
>> 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
>> _______________________________________________
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> 
> _______________________________________________ Gnso-igo-ingo-crp mailing list
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> -crp


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