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

[George Kirikos]

Hi folks,

On Wed, Nov 22, 2017 at 12:40 PM, Corwin, Philip <pcorwin at verisign.com> wrote:
>
> “By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP.”
>
>
>
> Personal comment: The post-judicial granting of immunity/dismissal of litigation arbitration option is being proposed for the benefit of domain registrants, not IGOs, to assure some meaningful appeal process when the judicial route is foreclosed.

That appears to be some sort of admission (finally), that the
arbitration option is to the detriment of IGOs, compared to the status
quo (I listed a series of questions in a separate email to get at
FACTS, without direct response yet, see:

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000925.html

The problem is, the arbitration option is being proposed as a solution
to a directly identifiable problem in the UDRP, i.e. "when the
judicial route is foreclosed". i.e. Option C directly admits there is
a problem with the UDRP itself (it's due to that reversal of
plaintiff/defendant that I've written about in prior emails).

But, instead of actually fixing the problem, it creates a totally "ad
hoc" solution, based on no fundamental principles whatsoever, that
simply "cuts the baby in half" so to speak, as some attempt to appear
to "do something" positive.

That attempt to "do something" positive doesn't go back to the first
principles that Paul Keating, David Maher, and others have been
repeatedly trying to point, namely that the domain name registrant is
*entitled* to the judicial route. The judicial route (de novo review)
was the entire "bargain" that was made when the UDRP was adopted, i.e.
that it wouldn't interfere with underlying law.

Option C *perpetuates* that interference with underlying law, and
REPLACES the judicial route, something registrants are entitled to,
with an inferior facsimile. Option C is based on no principles
whatsoever, except political concerns that fixing the actual
underlying problem (i.e. Option A) would be "politcally incorrect"
(i.e. cause the entire report to be rejected, etc.).

> But if there is not consensus support for that option we can stick to present policy and leave them without recourse.

Leaving them without judicial recourse (i.e. maintaining the status
quo, with the problem intact) represents a continuation of the problem
we've identified.

But, we've identified a complete solution to the problem, namely
Option A. It "flips back" the plaintiff/defendant roles to what they
should have been in the first place, had the UDRP not created this
procedural quirk in the law which interfered with the legal rights,
where X suing Y in court is not symmetric to Y suing X in court in
some circumstances.

Since we've identified the complete solution, we should adopt it. Just
as we should in the related situation that I raised in the RPM PDP,
which can affect the URS, UDRP and perhaps even in the PDDRP for new
gTLD registry operators in some jurisdictions like the UK. There, the
exact same problem arises due to "cause of action" issues when X suing
Y in court is slightly different in some circumstances from Y suing X
in court for the same underlying dispute.

Option A, in particular, doesn't single out IGOs at all --- when
properly applied to ALL situations where X suing Y in court is
slightly different that Y suing X, it doesn't really care if it's an
IGO, or if it's a UK case like we've talked about, or some other
scenario due to the procedural quirks. We happened to come across it
because this is an IGO/INGO PDP, but our solution will ultimately be
robust to ALL situations where this procedural quirk exists, and
inform the work of the RPM PDP that many of are also involved with as
members.

Sincerely,

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