[Gnso-igo-ingo-crp] Board-GAC Dialogue on IGOs

Tue Mar 13 23:13:31 UTC 2018

Paul:

Option 6 reads:

•                     We should arrange for the UDRP providers [to] provide [mediation] at no cost to the parties. The UDRP already permits the resolution of disputes through arbitration - I would bind the IGOs to arbitration in the same way the Mutual Jurisdiction clause binds complainants to the registrant’s judicial system. Where an IGO refuses to take part in a judicial proceeding or judicial or arbitral proceedings, or successfully asserts immunity in a judicial proceeding, any prior UDRP determination would be quashed.

It is unclear to me what is being proposed here. Mediation is merely assisted negotiation, but is not binding. But it also says “I would bind the IGOs to arbitration”, and mandatory arbitration is binding (and is what IGOs have proposed as a substitute for judicial appeal).

If mediation fails then there must be recourse to a means of judging the dispute. Will it be the UDRP or binding arbitration? If it is the former then IGOs still assert an immunity right and concern. And the GAC advice referenced by the WIPO speaker had consistently been that when an IGO brings a DRP (and they want one separate from UDRP) the registrant should have no right of judicial appeal but must settle for arbitration.

So I fine with encouraging mediation. But that is part of a solution, not the entire one.

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: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] On Behalf Of Paul Tattersfield
Sent: Tuesday, March 13, 2018 6:30 PM
To: gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org>
Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Board-GAC Dialogue on IGOs

In that case, Phil I would respectfully suggest we go for option #6 of the Straw Man because it is the only option that actually meets GAC advice and offers the IGOs a chance to settle 30%* of their disputes at no cost.

In the Nominet model less than 0.5% of cases actually get appealed. Further all other options in the Straw Man argument will fail to deal with most if not all of that 0.5% of appealed names as all five options require a highly improbable theoretical scenario where a court fails to recognise an implicit waiver of jurisdictional immunity required to initiate proceedings. That scenario has not occurred to date nor is it ever likely to occur!

Quite simply options 1 to 5 provide no benefits to IGOs

Best regards,

Paul.
* 30% figure achieved at Nominet’s dispute resolution procedure using free private mediation

On Tue, Mar 13, 2018 at 9:39 PM, Corwin, Philip via Gnso-igo-ingo-crp <gnso-igo-ingo-crp at icann.org<mailto:gnso-igo-ingo-crp at icann.org>> wrote:

   I post this in my capacity as a WG member, not a co-chair.

   The Board and GAC just discussed the issue of IGOs and this WG. The relevant portion of the transcript is below.

   I have been clear in the past that the issue of IGO access to curative rights processes is a very high level one within ICANN, and that the failure of this WG to reach consensus on a compromise approach that can at least be adopted by GNSO Council risks the matter being resolved in another manner other than that of the PDP WG.

   >>MANAL ISMAIL:   THANKS, GORAN.  AND AGAIN, I THANK -- I THANK ICANN PEOPLE FOR THE CONSTRUCTIVE DISCUSSION, AND ALSO I THANK MY GAC COLLEAGUES FOR SHOWING FLEXIBILITY AND WILLING TO FIND A CONSTRUCTIVE WAY FORWARD, WHICH WAS REALLY HELPFUL AT THE END OF THE SESSION; TO FIND AN AGREED WAY FORWARD.  AND WE'LL KEEP FOLLOWING UP WITH ICANN ORG ON THIS, OF COURSE.

   SO WITH THIS, WE CAN NOW MOVE TO GAC QUESTIONS.  AND AGAIN, MAYBE WE CAN TAKE THEM IN REVERSE ORDER AS WELL.  SO WE CAN START WITH THE IGO PROTECTIONS, BECAUSE THIS IS JUST ONE QUESTION.  AND THEN WE GO TO THE GDPR.  I SEE NODDING, SO...

   SO HERE, IN A LETTER OF 22nd DECEMBER TO DONUTS, 2017 TO DONUTS, INCORPORATION, CONCERNING EUCLID UNIVERSITY THE BOARD VICE CHAIR AND THE PRESIDENT OF THE GLOBAL DOMAINS DIVISION NOTED THAT THE PROTECTIONS FOR IGO ACRONYMS REMAINS A TOPIC OF DISCUSSION BETWEEN THE GNSO AND THE GAC AND IS BEING FACILITATED BY FORMER ICANN BOARD MEMBER BRUCE TONKIN.

   SO CAN THE BOARD CONFIRM THAT THE FACILITATED PROCESS IN THIS REGARD HAS NOT PROGRESSED SINCE THEN, SINCE ICANN58, AND INDICATE WHAT ARE THE NEXT STEPS?

   THANK YOU.

   >>CHRIS DISSPAIN:   THANK YOU, MANAL.

   >>MANAL ISMAIL:   YES, PLEASE.

   >>CHRIS DISSPAIN:   CHRIS DISSPAIN.  THANK YOU FOR THE QUESTION.  YES, IT HAS PROGRESSED.

   THE SITUATION IS THAT THE FACILITATOR -- THE FACILITATION THAT BRUCE TONKIN DID LED TO AN UNDERSTANDING THAT ICANN ORG WOULD LOOK INTO CREATING WHAT WE'RE SHORTHANDING AS A WATCH LIST WHICH WOULD ENABLE IGOs TO BE INFORMED IN THE EVENT THAT SOMETHING THAT WAS AN ACRONYM OF THEIR NAME WOULD BE -- HAD BEEN REGISTERED.  THAT -- THAT'S -- ICANN ORG ARE WORKING ON THAT AND ON FIGURING OUT HOW TO DO THAT.

   IN PARALLEL TO THAT, THE GNSO WAS RUNNING A CURATIVE RIGHTS MECHANISMS PDP, AND WE HAD DECIDED THAT -- WE ALL AGREED, REALLY, THAT THE CURATIVE RIGHTS PDP NEEDED TO BE COMPLETED BEFORE, SO THAT WE COULD EFFECTIVE LAUNCH EVERYTHING AT THE SAME TIME.  SO THAT YOU COULD RELEASE -- UNRESERVE THE ACRONYMS, RELEASE THEM, AND THEN THE WATCH LIST WOULD PROVIDE IGOs WITH NOTIFICATION, AND THEN THEY WOULD HAVE THE CURATIVE RIGHTS TO FALL BACK ON SHOULD THEY NEED THEM.

   THE BOARD LEARNED TODAY THAT THERE MAY BE SOME ISSUES WITH THE -- WITH GNSO POLICY DEVELOPMENT PROCESS.  IT APPEARS TO HAVE HIT A BIT OF A PROBLEM IN REACHING CONSENSUS, AND IT MAY BE THAT THAT PDP, IN FACT, WILL FAIL TO REACH CONSENSUS, IN WHICH CASE, IF I UNDERSTAND IT CORRECTLY, WE WOULD NEED TO FIND A SOLUTION, ANOTHER -- ANOTHER WAY.

   JUST -- AT THE MEETING WE JUST HELD WHICH WAS WITH THE CONTRACTED PARTIES HOUSE, WE AGREED TO HAVE A CONVERSATION WITH THE -- WITH THE CONTRACTED PARTIES HOUSE, OR, RATHER, WITH THE REGISTRARS; SEE IF WE COULD FIND A WAY OF SHORE CUTTING THE SYSTEM TO A WAY OF A CURATIVE RIGHTS MECHANISM SO WE CAN MOVE FORWARD ON THIS.  SO THINGS ARE MOVING.  THEY'RE JUST MOVING SLOWLY….TO FINISH OFF, JUST TO SAY THAT WE -- WE GOT SOME INFORMATION TODAY, WHICH I'VE NOW TOLD YOU, AND WE ARE SEEING IF WE CAN FIND A WAY AROUND THAT.  AND BELIEVE ME WHEN I SAY THAT I'M AS KEEN TO SORT THIS OUT AND GET RID OF IT AS YOU ALL ARE.

   THANK YOU.

   >>WIPO:   THANK YOU, CHAIR.  I JUST WANTED TO FOLLOW ON WHAT CHRIS SAID BY WAY OF THANKING CHRIS AND OTHERS INVOLVED FOR MOVING THIS PROCESS ALONG.  WE'VE BEEN PLEASED TO SEE THAT IN TERMS OF THE FULL-NAME PROTECTION, WE BELIEVE WE'VE MADE A LOT OF PROGRESS.  AND WE HAVE A LITTLE BIT OF WORK TO GO TO NARROW THE GAP, AND WE'RE HOPING THAT WE CAN RELY ON ICANN FOR A LITTLE BIT OF ASSISTANCE IN THAT RESPECT.

   SO I JUST, AGAIN, WANTED TO RECORD THAT WE'RE PLEASED TO SEE THAT MOVING IN A GOOD DIRECTION.

   AND THEN JUST TO ALSO PICK UP ON WHAT CHRIS SAID, WE HAVE HAD NOT ONLY SERIOUS CONCERNS WITH THE INTERIM REPORT OF THIS GNSO WORKING GROUP, WHICH HAS SIGNALED THAT IT WOULD COME OUT WITH RECOMMENDATIONS WHICH SQUARELY CONFLICT WITH GAC ADVICE, BUT ALSO IN THE PROCESS BREAKDOWN IN THE WORKING GROUP ITSELF.  AND OBVIOUSLY THAT'S AN AREA WHERE I THINK WE'RE ALL LOOKING TO SEE WHAT UNFOLDS.

   THANK YOU.

   (Emphasis added)

   Philip S. Corwin

   Policy Counsel

   VeriSign, Inc.

   12061 Bluemont Way
   Reston, VA 20190

   703-948-4648<tel:(703)%20948-4648>/Direct

   571-342-7489<tel:(571)%20342-7489>/Cell

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

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