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

Tue Nov 28 17:17:43 UTC 2017

In regard to "UDRP policy changes are beyond our remit", that is incorrect.

Recommending UDRP policy changes to ensure effective use of CRP by IGOs is completely within our remit under our Charter. Indeed, our Charter empowered us to create entirely separate CRPs for the exclusive use of IGOs.

But, for good reason, we declined to go that far, and our Final Report will at most contain one narrow recommendation for a UDRP policy change.

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: Paul Keating [mailto:Paul at law.es]
Sent: Wednesday, November 22, 2017 4:28 PM
To: Corwin, Philip <pcorwin at verisign.com>; Maher, David <dmaher at pir.org>; petter.rindforth at fenixlegal.eu; 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

Phil,

I am sorry but I completely disagree.  The only impact the the MJ has is the fact that it creates one (1) jurisdiction in which the Complainant has agreed to litigate (and as such issues of personal jurisdiction become moot) and it creates an automatic stay without need for separate TRO or similar court order.  It does not preclude a respondent from litigating the matter in any other appropriate jurisdiction.  Hence any respondent may litigate, for example, in the US where a claim is recognized by statute (there are other jurisdictions as well).

Further, the problem we were tasked to address was the issue of IGOs and sovereign immunity.  Our conclusion, based upon facts and law, was that no problem existed because the system worked as intended and no IGO had provided evidence of preclusion as a result of 4(k) or the Mutual Jurisdiction certification.  While it might be nice to address UDRP failings for the benefit of respondents that was not our mandate.  That is a mandate for the UDRP review WG.

I have said many times that I do not favor any changes to our initial report other than incorporating the further public comments received to the extent relevant.

There simply is no evidence that any "problem" exists.  And, by the way, if there was a problem based on sovereign immunity, why stop at IGOs?  What about American Indian Tribes or Countries, etc.??

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.

I am completely opposed to creating any other form of "solution" and if pressed I would have to be honest and fall back to my initial position - also stated above - that UDRP policy changes are beyond our remit.  We were tasked only o review IGO related issues.  We concluded there were none.

Paul

From: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Wednesday, November 22, 2017 at 6:40 PM
To: "Maher, David" <dmaher at pir.org<mailto:dmaher at pir.org>>, Paul Keating <paul at law.es<mailto:paul at law.es>>, "petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>" <petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>>, "icann at leap.com<mailto:icann at leap.com>" <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

   "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.

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

   From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of David W. Maher
   Sent: Wednesday, November 22, 2017 12:34 PM
   To: Paul Keating <Paul at law.es<mailto:Paul at law.es>>; petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>; 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>
   Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C

   +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<mailto:petter.rindforth at fenixlegal.eu>; 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>
   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/>

   Tel. +34 93 368 0247 (Spain)

   Tel. +44.7531.400.177 (UK)

   Tel. +1.415.937.0846 (US)

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   email:  Paul at law.es<mailto:Paul at 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

      Fenix Legal KB

      Stureplan 4c, 4tr

      114 35 Stockholm

      Sweden

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      Direct phone: +46(0)702-369360

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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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