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

Wed Mar 14 00:13:39 UTC 2018

Phillip,

Go to hear you're fine with the mediation part....

The process path would be

(i) Free Private Mediation
(ii) Determination
(iii)The registrant has a choice of arbitration OR the judicial route to
contest an adverse determination decision.

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(s).

This is to prevent the scenario where a registrant has lost a UDRP
determination and they wish to use arbitration to contest that decision and
is faced with the situation where an IGO refuses to take part in the
arbitration. This shouldn’t be a problem for the IGOs because they have
stated they would prefer a registrant to seek arbitration rather than take
the judicial route.

It could be done very simply when an IGO initiates proceedings:

Rules for Uniform Domain Name Dispute Resolution Policy
App: 28/09/2013 -  Imp:31/07/15

*3 (xii) State that Complainant will submit, with respect to any challenges
to a decision in the administrative proceeding canceling or transferring
the domain name, to the jurisdiction of the courts in at least one
specified Mutual Jurisdiction;3 (xiii) State that an IGO Complainant will
submit, with respect to any challenges to a decision in the administrative
proceeding canceling or transferring the domain name, to arbitration. *

This should increase beyond 30% the number of disputes being settled in a
way that is acceptable to the IGOs and the GAC.

If the working group wanted more registrants to choose this route, the
working group could set out a framework, but it needs to be faster, cheaper
and less risk involved (name only etc.) for registrants who wish to appeal
to be persuaded to choose to go the arbitration route instead of the
judicial route.

Best regards,

Paul

On Tue, Mar 13, 2018 at 11:13 PM, Corwin, Philip <pcorwin at verisign.com>
wrote:

> 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
> <https://maps.google.com/?q=12061+Bluemont+Way+%0D%0AReston,+VA+20190&entry=gmail&source=g>
> Reston, VA 20190
>
> 703-948-4648 <(703)%20948-4648>/Direct
>
> 571-342-7489 <(571)%20342-7489>/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> 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
> <https://maps.google.com/?q=12061+Bluemont+Way+%0D%0AReston,+VA+20190&entry=gmail&source=g>
> Reston, VA 20190
>
> 703-948-4648 <(703)%20948-4648>/Direct
>
> 571-342-7489 <(571)%20342-7489>/Cell
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
>
> _______________________________________________
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> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>
>
>
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