[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 17:41:45 UTC 2017
Hi Phil,
With all respect,
I am not aware of the multiple policy rationales. I have seen many
statements regarding balancing of interests, etc. None of these are
factually or legally based. If there is a listing of factually based
reasons I ask that it be sent to the group as a single document. I also
request that we stop characterizing subjective impressions as factual
evidence.
It seems to me that we must first determine if in fact there is actually a
problem. This is where you all are pardon the phrase skipping the line.
You are jumping to format a solution before it is shown that a problem
actually exists.
Because I can see no problem to fix, I cannot see any rationale (policy
based or otherwise) to create a ³solution² - particularly one as detrimental
to the interests of domain registrants as that being considered.
IF, it is the intention to include in the report a variety of ³solutions²,
then the report must, IMHO,
Confirm that no facts exists that evidence a problem is in fact present
Review each of the proposals and include both the facts and legal positions
in favor and against each proposal,
Conclude that none of the solutions are in fact required
If there is to be a recommended proposal (other than a no change), then I
believe the correct way of addressing the issue is to create the report as
noted above and seek public review of the report and each of the
alternatives contained therein.
Otherwise, as I and others have said,
We are presuming a problem exists although all facts and legal analysis is
to the contrary.
We are creating solutions to this presumed but non-existing problem.
The drive to create the solutions is politically based the reason being
fear that the Board/GAC will reject a Report that does not contain a
³solution² to the non-existing problem.
So, the correct course of action is to augment the initial report to
describe and reject the various proposals because (a) there is no proven
problem and (b) none of them work.
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: "Corwin, Philip" <pcorwin at verisign.com>
Date: Wednesday, November 22, 2017 at 6:20 PM
To: Paul Keating <paul at law.es>, "petter.rindforth at fenixlegal.eu"
<petter.rindforth at fenixlegal.eu>, "icann at leap.com" <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
> ³With 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.²
>
> This is not a correct statement.
>
> The Co-Chairs, both together and separately, have articulated multiple policy
> rationales for their views on the options before this WG, but never have we
> stated that are seeking to cater to the Board/GAC/IGOs.
>
> Our primary objective has been to seek a resolution that is based in sound and
> consistent policy analysis and that is likely to receive a majority and
> hopefully supermajority vote of approval in GNSO Council.
>
> The Board has taken no official position on the matters before this WG and
> will not do so until it receives a report and recommendations supported by
> Council (noting further that the Board asked us to consider, but did not
> endorse, the position of the ³IGO small group²).
>
> While I hope that the GAC and IGOs will take the time to carefully read and
> consider our final report and recommendations, the position the have
> consistently urged is that the WG recommend a separate CRP for IGOs in which
> domain registrants would have no right of judicial review. The Co-Chairs have
> never supported that GAC/IGO position.
>
> As we move toward consideration of a draft final report, let¹s please try to
> stick to facts and not their alternatives.
>
> Best, Philip
>
>
>
> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf
> Of Paul Keating
> Sent: Wednesday, November 22, 2017 12:09 PM
> To: petter.rindforth at fenixlegal.eu; George Kirikos <icann at leap.com>
> Cc: 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
> 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/>
>
> 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 <mailto:Paul at law.es>
>
>
>
> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN
> INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE
> INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM
> IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF
> PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE
> EMAIL AND ANY ATTACHMENTS.
>
>
>
> Circular 230 Disclosure: To assure compliance with Treasury Department rules
> governing tax practice, we hereby inform you that any advice contained herein
> (including in any attachment) (1) was not written or intended to be used, and
> cannot be used, by you or any taxpayer for the purpose of avoiding any
> penalties that may be imposed on you or any taxpayer and (2) may not be used
> or referred to by you or any other person in connection with promoting,
> marketing or recommending to another person any transaction or matter
> addressed herein.
>
>
>
> NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN
> ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM
> AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS
> IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL
> CONSTITUTE LEGAL ADVICE
>
>
>
>
> 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
>>
>> Fax: +46(0)8-4631010
>>
>> Direct phone: +46(0)702-369360
>>
>> E-mail: petter.rindforth at fenixlegal.eu
>>
>> www.fenixlegal.eu <http://www.fenixlegal.eu>
>>
>>
>>
>>
>>
>> NOTICE
>>
>> This e-mail message is intended solely for the individual or individuals to
>> whom it is addressed. It may contain confidential attorney-client privileged
>> information and attorney work product. If the reader of this message is not
>> the intended recipient, you are requested not to read, copy or distribute it
>> or any of the information it contains. Please delete it immediately and
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>>
>> Fenix Legal KB, Sweden, www.fenixlegal.eu <http://www.fenixlegal.eu>
>>
>> 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
>>>
>>> _______________________________________________
>>>
>>> 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
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