[council] FW: Consideration of options for Curative Rights

McGrady, Paul D. PMcGrady at winston.com
Sun Oct 21 15:30:24 UTC 2018

Fellow Councilors,

Please see Phil's email below.  It does raise the issue of whether or not we must refer Recommendation 5 to Phase 2 of the RPM PDP or whether we can just say "that is out of scope, so we are not advancing it" and just let it die where it is.  There is a certain amount of cleanliness in letting it die rather than breathing new life into it by sending it to Phase 2/RPM.


From: Corwin, Philip <pcorwin at verisign.com>
Sent: Sunday, October 21, 2018 9:52 AM
To: McGrady, Paul D. <PMcGrady at winston.com>
Cc: kathy at kathykleiman.com; brian.beckham at wipo.int; julie.hedlund at icann.org; ariel.liang at icann.org; mary.wong at icann.org
Subject: RE: [council] Consideration of options for Curative Rights
Importance: High


I would hope you would pass this PERSONAL comment along to Council.

As a former co-chair of the IGP CRP WG I am excruciatingly aware of the complexities of the subject of IGO immunity, and sovereign immunity generally, in relationship to the UDRP. I am therefore concerned that kicking this issue to the RPM WG would introduce a new, complex, and divisive matter that might significantly delay if not derail our Phase 2 UDRP work. This could be for us what WT5 has become for SubPro, as GAC and IGO members will likely wish to participate.

At  a minimum, WG members would need to review, discuss, and understand the 25-page legal memo prepared on the interrelationship of IGO immunity and the UDRP prepared by Prof. Edward Swaine for the IGO CRP WG.

Therefore, I would ask that Council not act in haste and give extended consideration to these concerns before asking that the RPM WG re-litigate an issue that consumed four years for the IGO CRP WG (one of which, admittedly, was for preparation and publication of the Swaine memo). This issue involves a fundamental conflict between the right of a domain registrant to seek judicial review in a court of mutual jurisdiction, and the scope of an IGO's immunity from judicial process (which can vary between jurisdictions). There is no easy answer to this conflict, and no resolution possible at all absent some mutual degree of compromise.

Thank you,


Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way

Reston, VA 20190



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

-----Original Message-----
From: council [mailto:council-bounces at gnso.icann.org] On Behalf Of McGrady, Paul D.
Sent: Sunday, October 21, 2018 9:53 AM
To: Rubens Kuhl <rubensk at nic.br<mailto:rubensk at nic.br>>; GNSO Council List <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: [EXTERNAL] Re: [council] Consideration of options for Curative Rights

Thanks Rubens.  I understand that while we haven't done that sort of thing before, there is nothing prohibiting it.  Seems like a sensible way forward to me...



-----Original Message-----

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> On Behalf Of Rubens Kuhl

Sent: Sunday, October 21, 2018 8:42 AM

To: GNSO Council List <council at gnso.icann.org<mailto:council at gnso.icann.org>>

Subject: [council] Consideration of options for Curative Rights

Fellow Council members,

I wonder if it's an option for the Council to accept recommendations #1 to #4 of the final report, and refer recommendation #5 to the RPM PDP, since there are concerns of that being or not in the WG charter / scope ?



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