[Gnso-igo-ingo-crp] Options Related to Recommendation 4: Provisional Agreements and Request for Response

[George Kirikos]

Hi folks,

Just to be clear, I don't believe this PDP or working group has made a
"provisional agreement" on anything in relation to Recommendation 4 at
this time. In particular, various options were discussed in terms of
incorporating elements of Options #3 and #6 into Option #2, in order
to making it more palatable to those who are in favour of other
options (i.e. those who favour Option #1, or Option #4, etc).

My understanding has been that those suggested improvements to the
bare Option #2 will *then* be presented as a potential package for
consideration, *along* with the existing options that are still on the
table (which haven't been dismissed). And when it comes time have a
consensus call/vote, we can see which option(s) win the support of the
group.

So, to the extent that there's "provisional agreement", it's only to
the extent of how to *supplement* the bare Option #2, without
prejudice to any other options that still exist.

If we want to be explicit about rankings, I'm still of the view that
the best choices are roughly (in order from best to worst):

(a) Option #1 (set aside the UDRP decision if the IGO successfully
asserts immunity in court)
(b) Option #4 (i.e. Option #1 for existing domains, Option #2 for
newly created ones)
(c) Option #3 + Option #6 as a package (to capture the in-rem and
quasi in-rem elements)
(d) Option #2 strengthened with elements from Options #3 and #6 (what
we've been discussing the past few weeks), as a package
(e) Option #2 alone (arbitration if IGO successfully asserts immunity in court)

but at this point, the broader PDP membership hasn't yet weighed in,
to see which option(s) do have consensus support.

Sincerely,

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


On Tue, Sep 19, 2017 at 5:02 PM, Steve Chan <steve.chan at icann.org> wrote:
> Dear WG Members,
>
>
>
> Below, please find an email sent on behalf and at the request of the WG
> co-chairs.
>
>
>
> On the 14 September WG call, in further discussing the options related to
> Recommendation 4, we reviewed an updated diagram (attached) and considered
> the two specific questions below. On the call, the WG reached provisional
> agreement as follows.
>
>
>
> Should limitation of the court review or arbitration to disposition of the
> domain name require mutual agreement of the Respondent and IGO, or should we
> recommend that limitation for one or both appeal forums?
>
> If this WG were to recommend that court review be limited to ownership of
> the domain name, it appears unlikely that ICANN policy would prevent a court
> of mutual jurisdiction from exploring all remedies that it has access to.
> However, parties could be encouraged or at least be made aware that judicial
> appeals could be limited to ownership of the domain name. We anticipate that
> the Respondent, by forgoing its ability to seek monetary damages or
> injunctive relief, could reasonably expect that the IGO (complainant) would
> forgo its ability to assert a defense of judicial immunity.
> Arbitration could be limited to the disposition of the domain name in
> recognition that this option, coming after an IGO’s successful assertion of
> an immunity defense, provides an avenue of additional appeal that is
> unavailable to Respondents at present; as well as that an arbitration body
> has little or no power to enforce a money judgment or injunction against an
> IGO.
>
> Should the Respondent be permitted to choose to go directly to arbitration
> rather than judicial appeal if it wishes to?
>
> The WG agreed that respondents should be allowed to file an arbitration
> action after the UDRP/URS is concluded in the IGO’s favor if it wishes to
> avoid the costs and lengths of a judicial appeal. However, the WG also
> discussed and is now posing the following questions: In addition to the
> previous allowance, should respondents also be permitted to file an
> arbitration action before or during the pendency (pre-decision) of a UDRP?
> Should such pre-decision filing require mutual agreement of the IGO
> complainant?
>
>
>
> The co-chairs encourage all WG members, especially those who do not
> participate on the WG calls on a regular basis, to provide their feedback
> and response to the specific questions above. We hope and anticipate
> completing the Final Report prior to ICANN60 and therefore, your feedback is
> critical in shaping this WG’s final recommendations.
>
>
>
> Best,
>
> Steve
>
>
>
>
>
>
>
>
>
> Steven Chan
>
> Policy Director, GNSO Support
>
>
>
> ICANN
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