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

Wed Nov 22 17:33:48 UTC 2017

+1
For additional history of the UDRP, see:
http://dmaher.org/Publications/globaliz.pdf

David W. Maher
Public Interest Registry
Senior Vice-President - Law & Policy
+1 312 375 4849

From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Paul Keating
Sent: Wednesday, November 22, 2017 11:09 AM
To: petter.rindforth at fenixlegal.eu; George Kirikos <icann at leap.com>
Cc: 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
Importance: High

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/>
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From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at icann.org>> on behalf of Petter Rindforth <petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>>
Reply-To: <petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>>
Date: Saturday, November 18, 2017 at 12:22 AM
To: George Kirikos <icann at leap.com<mailto:icann at leap.com>>
Cc: "gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>" <gnso-igo-ingo-crp at icann.org<mailto: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 Philip's 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

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Thank you

17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann at leap.com<mailto: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<mailto: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

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