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

Tue Nov 28 17:47:26 UTC 2017

Paul:

With all respect, this is a POLICY Development Process.

Having participated in the development of US laws for four decades, all of which represent a (usually quite compromised) policy determination, I can assure you that the question of whether or not a problem exists for which some law must be enacted or amended is a constant issue on which there is seldom if ever agreement by opposing parties with different interests. If the enactment of a law required absolute proof of a problem to which it was responding the statute books would be a lot slimmer.

For our WG's purpose, the fact that IGOs claim that the mutual jurisdiction clause inhibits their utilization of existing CRP avenues is adequate evidence that there is a claimed problem. The fact that some IGOs have chosen to utilize the UDRP notwithstanding this possible judicial exposure does not mean that it does not inhibit other IGOs.

We are addressing this claim by:

*       Pointing out that IGOs may insulate themselves from exposure by filing for CRP relief via an agent, assignee, or licensee [no policy change]
*       Leaving the issue of whether an IGO may successfully assert immunity when a losing registrant seeks de novo determination to the court, which is where it should be resolved under prevailing national law and analytic approach [no policy change]
*       Providing the registrant with an alternative means of getting a de novo determination under relevant law if the court upholds the immunity claim (presuming that the final consensus call still favors Option C) [modest policy change which benefits the registrant, and seeks to balance the respective rights of the two parties]

Finally, to once again restate prior comments which apparently have not been noted, my personal concern is NOT "fear that the Board/GAC will reject a Report". My goal is to produce a Final Report that can receive Council support - hopefully Supermajority - which is the best means of ensuring Board adoption even if the GAC and IGOs continue to press for a separate CRP for exclusive use of IGOs, which I have never favored and which has received no traction in this WG.

Best, Philip

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 12:42 PM
To: Corwin, Philip <pcorwin at verisign.com>; 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

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 "solution" - 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 "solutions", 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 "solution" 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<mailto:Paul at law.es>

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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: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Wednesday, November 22, 2017 at 6:20 PM
To: 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

   "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."

   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 "IGO small group").

   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, let's 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<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
   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<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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      www.fenixlegal.eu<http://www.fenixlegal.eu>

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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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