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

[George Kirikos]

Hello,

On Wed, Nov 22, 2017 at 4:27 PM, Paul Keating <Paul at law.es> wrote:
> When we were engaging in" what ifs” I stated my support for a rule change regarding vitiating the underlying UDRP ruling IF an IGO obtained dismissal of post-udrp litigation based on Sov. Imm.  In other words, if the IGOs thought they had immunity, let them argue for it – with the appropriate consequences.

Yes, for those who didn't attend all the meetings, Paul Keating is
correct. What is "Option 1" (or now Option A) was actually his
proposal (not mine). The earliest reference I could find was on page
14 of the July 21, 2016 phone call transcript:

https://community.icann.org/download/attachments/60491579/transcript%20IGO%20INGO%2021%20July%202016.pdf?version=1&modificationDate=1469203657000&api=v2

Paul Keating: "But to state emphatically in a part of the UDRP policy
that if there is subsequent litigation following a UDRP, in which the
IGO requests and is granted or the court on its own grants immunity,
then the UDRP decision itself should become a nullity.

And the reason is, is because otherwise you're leaving a respondent
with no ability to challenge a contractually appointed panel. The
quality of which is not always very good. I mean, if you look at the
statistics for post-UDRP litigation, the vast majority of them are
overturned. And I think that to leave a respondent solely with the
UDRP as their only means of addressing the issue and nothing else, I
think that that’s patently unfair to the respondent.

So I think that the proper choice is to place the decision at the
level of the IGO. If they wish to proceed with the UDRP they're
running the risk of waiver of their immunity claim. If they win and
they subsequently argue immunity, and are granted immunity, then the
UDRP decision becomes a nullity."

Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let
me just ask - and I think what you put forward should be discussed by
the group as we move toward report and recommendations. If that - let’
say there’s a decision, it goes against the registrant in the UDRP.
Transfer is ordered. Registrant files in a court of mutual
jurisdiction. IGO goes into that court and says they - we shouldn’t be
here, we’re immune. Court agrees with them, would the IGO then - then
the - under your scenario, the UDRP decision is also vitiated."

So, initially it was being called "nullification", and I think Phil
might have been the first one to use the term vitiate (which some
people don't like as it's too technical). Regardless, it was Paul
Keating's idea.

This is consisent with the Adobe Connect Chat Room Transcript for the
following week's call (July 28, 2016):

http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html

where we're chatting back and forth and we're using the term
"nullification", I pointed out expressly that it was Paul Keating's
idea:

"George Kirikos:For suggestion #1 (which I don't favour; I'm in the
"status quo + greater education + assignment camp), nullification
should take place regardless when the court case is brough (since a
court case can be brought at any time, even before the UDRP decision
is rendered).
  George Kirikos:*brough = brought
  Mary Wong:Options A through D are more fully detailed in Prof
Swaine's legal memo.
  Mary Wong:Option E brings us back to the standing issue - Phil
provided a clarification last week that this, too, is an option to
consider.
  Mary Wong:@George, but this would be a case filed by the losing
respondent, right?
  Mary Wong:Against a UDRP decision in favor of the IGO.
  George Kirikos:Mary: it would be filed during the UDRP, before the
panel has deemed the respondent a "loser"
  George Kirikos:A court case can be initiated at any time, even
before the panel has made a decision.
  Mary Wong:Understood, but I had thought that the "nullification"
point referred to vitiating the UDRP decision.
  George Kirikos:(that's how my company did it for the PUPA.com domain
name dispute; Tucows has done the same several times, as have others)
  Mary Wong:Because, if there hasn't yet been a panel decision, there
would not be a result to nullify.
  George Kirikos:Right, it would be nullified, even if the respondent
didn't wait for the panel to reach a decision (i.e. they might make an
adverse decision later, after the court case is brought).
  George Kirikos:Some panels will terminate, to defer to the courts.
Some panels will still render a decision, though.
  George Kirikos:I didn't propose it -- Paul Keating did."

Sincerely,

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