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

Tue Nov 28 20:08:33 UTC 2017

Dear Philip,

+1 (strongly agree and also recommend UDRP changes, incorporating IGO &
INGO matters especially addressing immunity or waiver. If succeeded in
getting updated version of UDRP, our recent policy making will be
different, and most probably disputes could be handled or solved
earlier). 

Regards 

Imran Ahmed Shah

On Tue, November 28, 2017 10:17 pm, Corwin, Philip via Gnso-igo-ingo-crp
wrote:
> 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)
>
>
> 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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> From: Gnso-igo-ingo-crp
> <gnso-igo-ingo-crp-bounces at icann.org<mailto:gnso-igo-ingo-crp-bounces at ica
> nn.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
>
>
>
>
>
>
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> petter.rindforth at fenixlegal.eu<mailto:petter.rindforth at fenixlegal.eu>
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>
>
> 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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