[gnso-rpm-wg] Agenda and Materials for 01 February 2018 Meeting

[Susan Payne]

I will also be unable to join the upcoming call since I am based in the UK where it is scheduled for 4am.  I would therefore like to add my agreement and comments to those of Brian below.

I agree with Brian that the 4 co-chair questions (the four bullets in the penultimate paragraph) relate to topics which are already identified in Part One and Park Two of the URS working document and that as such, to the extent that the WG considers that they need to  be considered and are not already adequately covered, then they should be incorporated into the Topics/Questions, not sit as a separate statement.

I would like to reiterate the concerns I raised previously about bullet 3 since there was no opportunity available to discuss them on the last call.   Bullet 3, in the form it is expressed in the co-chairs statement, proposes that we investigate the application of the clear and convincing evidence standard and that in doing so “This will require a qualitative review of a statistically significant percentage of URS decisions”.  This appears to propose that the WG members should re-open a number of URS decisions and effectively seek to apply our own judgment in place of that of the appointed panellist.  Our role in this PDP WG is to review the effectiveness of the RPMs and whether they collectively fulfil the purpose for which they were created, not to effectively take on the role of an appeals body in cases which have not been appealed, or that of ICANN Compliance.  It also raises significant practical concerns, in that we would presumably be attempting this “qualitative review” without the benefit of the underlying information that was available to the panellist, including the Complaint and Response, which are not published.  Any such review is pretty worthless.

As I previously suggested, a reasonable and proportionate approach, which would be consistent with our approach on the TMCH, would be to consider the URS providers’ practices, in terms of what instructions and/or training are provided to panellists about the URS and its evidence standard.  A consideration of the extent to which decisions have been overturned on appeal on the basis of the application of the incorrect standard would also be something we could consider.  I would like to repeat my suggestion that bullet 3 be amended, including the deletion of the Co-Chairs Note, to read:

·         How have the URS providers ensured that the “clear and convincing evidence” standard has been applied.

I would also like to support Brian’s procedural concerns.  Whilst I am sure this was done with the best of intentions, a statement such as this coming from one or more of co-chairs risks being perceived as having an authoritative status, which it is not afforded under the GNSO Working Group Guidelines (particularly for those WG members who are not so familiar with the Guidelines and the roles and responsibilities of working group participants).  As a working group we have spent some weeks now talking about the topics and questions for consideration on the URS – the questions raised in the co-chairs statement should have been submitted into that process in the same way that other working group members have done so.

Thanks
Susan


Susan Payne
Head of Legal Policy | Valideus Ltd

E: susan.payne at valideus.com<mailto:susan.payne at valideus.com>



From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of BECKHAM, Brian
Sent: 30 January 2018 13:13
To: Julie Hedlund <julie.hedlund at icann.org>; gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] Agenda and Materials for 01 February 2018 Meeting

Thanks Mary, Julie, Ariel and Berry,

As I am unlikely to make this call, please consider this my contribution:

I would like to reiterate my observation that the 4 co-chair questions and their accompanying rationale are already covered in both Part 1 (Topics) and Part 2 (Questions), respectively at M (ccQ1), M (ccQ2), D (ccQ3), and G (ccQ4), and it is difficult to see the need for yet another separate document/set of questions to consider.

Assuming there is consensus that these questions should in fact be addressed by the WG (which seems to be the case, given the fact that they are largely duplicative of existing Topics/Questions (see above)), my suggestion therefore is that these 4 co-chair questions be wholly incorporated into Part 1 (Topics) and Part 2 (Questions), and that the WG proceed to addressing the consolidated list of Topics/Questions.

In procedural terms, if as a member of the WG, a co-chair believes there are questions not already included in the list of Topics/Questions, they should be put forward to the WG for its consideration, by email or during our calls.  The current co-chair statement approach risks running afoul of the respective roles set out for Chairs and Members established in the GNSO Working Group Guidelines (respectively 2.2.1 (“The purpose of a Chair is to call meetings, preside over working group deliberations, manage the process…”) and 2.5 (“member Responsibilities include: Develop and draft working-group documents; Contribute ideas and knowledge to working group discussions…”)).

Moreover, as to the evidentiary standard, given that the WG is not privy to URS pleadings, and the determinations themselves are largely lacking in (legal) reasoning the task of assessing whether the appropriate evidentiary standard has been applied risks being an exercise in partly informed (and potentially biased) second-guessing.

Thank you for your consideration.

Brian

Brian Beckham | Head, Internet Dispute Resolution Section | WIPO Arbitration and Mediation Center
34 chemin des Colombettes, 1211 Geneva 20, Switzerland | T +4122 338 8247 | E brian.beckham at wipo.int<mailto:brian.beckham at wipo.int> | www.wipo.int<http://www.wipo.int/>


From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Julie Hedlund
Sent: Monday, January 29, 2018 10:24 PM
To: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: [gnso-rpm-wg] Agenda and Materials for 01 February 2018 Meeting

Hello everyone,

The next Working Group meeting is scheduled for Thursday, 01 February at 0400 UTC (31 January for some locations).  On the agenda is Part Three: Co-Chairs’ Statement on URS Review, pages 9-10 of the attached document.  In addition, the Co-Chairs will preview the agenda for the 07 February meeting on the URS Case Review template.

Note: Working Group members are encouraged to send any comments on the Co-Chairs’ Statement to this list.  If the comments can be addressed on the list the Thursday meeting may be canceled.  For reference, the notes from the previous discussion on the Co-Chair’s Statement may be found on the wiki at: https://community.icann.org/display/RARPMRIAGPWG/2018-01-10+Review+of+all+Rights+Protection+Mechanisms+%28RPMs%29+in+all+gTLDs+PDP+WG.

Thanks and cheers
Mary, Julie, Ariel and Berry

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