[Gnso-igo-ingo-crp] Action items from Working Group call this past Thursday

Mon Dec 11 19:54:21 UTC 2017

Dear all,

Further to Mary’s below email and further to the Working Group Call of
December 7, 2017, wherein Phil asked for proposed wording for consideration
and discussion, in connection with my suggestion that the Working Group
recommend that the options for how to deal with IGO concerns be addressed
through the RPM WG, please see below:

“The IGO WG has extensively deliberated on the question of whether changes
are required in order to address IGO concerns and has successfully
developed several potential options for addressing this issue. These
potential options however, would necessarily involve revisions to the UDRP
itself. The IGO WG is mindful that any such substantive changes to the UDRP
itself should be evaluated within the context of how they affect all
stakeholders and how they would affect the delicate balance which the UDRP
has achieved between competing interests. Accordingly, the IGO WG strongly
recommends that any changes to how the UDRP procedure is drafted and
employed for IGO's, if any, should be referred to the RPM WG for
consideration within its broader mandate to review the UDRP.”

As you know, the IGO WG commenced its work over three years ago.  The
complexity of the issues, and the delay created by the preparation and
review of the Swaine memo, resulted in the work of this WG being prolonged
beyond the expectations of any of its members.  In the meantime, the RPM WG
has begun its work and will shortly begin its review of the UDRP.  We find
ourselves contemplating recommending changes to the UDRP, just when the RPM
WG is on the verge of considering similar issues in a broader more
comprehensive context.

The IGO WG’s careful review of the issues raised by the IGOs' request for
modifications has revealed that any proposed solutions to the discrete
problem raised by the IGOs implicates core principles at the heart of the
UDRP that affect the balance of rights for participants and the grand
bargain among the stakeholders that led the UDRP to take its current form.
In particular, the IGO's assertion of sovereign immunity to judicial review
undermines the fundamental principle that access to the UDRP was a simpler
alternative to judicial consideration but should never prevent access to
the courts for a final determination of the issues.  In addition, the
creation of a new complex arbitration procedure is being touted for its
benefits in addressing a potential lack of a cause of action for de novo
judicial review in the Mutual Jurisdiction.  Rather than promote a complex
solution to a fundamental issue of access to judicial review that is
limited to a fringe circumstance, the desirability of ensuring that the
UDRP provides access to a Mutual Jurisdiction empowered to de novo review
of UDRP decisions calls out for a comprehensive solution that can best be
provided through the work of the RPM WG.

Option A, while adhering most closely to the legal principles underpinning
the UDRP has been characterized as politically unpalatable, and indeed
"dead on arrival' at the GNSO council.  Option C, as mentioned above,
attempts to bandage over a fundamental concern with judicial access with a
complex apparatus that will need countless hours to develop despite the
expectation that it may rarely if ever be used.  Neither option has
attracted a strong consensus from the Working Group members.  I suggest
that is because both options both have defects that can better be addressed
by the work of the RPM WG.

Instead, in my view, the above suggested alternative approach is attractive
for three reasons.

First, while it may be within the mandate of the IGO WG to recommend
changes for addressing IGO concerns, it is ill advised to make any such
specific recommendations outside of the context of the far broader mandate
of the RPM WG. The UDRP has been largely successful since 1999 because it
created a finely balanced dispute resolution regime. All proposed changes
which the IGO WG has considered, involve tinkering with the UDRP, and any
such tinkering risks throwing off the balance which it has achieved to
date. For example, under ‘Option C’, the provisions of Paragraph 4(k) of
the UDRP would have to be re-drafted so as to enable an IGO to use the UDRP
without necessarily agreeing to the jurisdiction of courts in a subsequent
action commenced by a registrant challenging a UDRP decision. Likewise,
‘Option A’ also necessarily requires a substantial revision to the UDRP, as
under that proposal, Paragraph 4(k) would also have to be re-drafted, to
provide for the staying of a UDRP decision in the event that an IGO
successfully asserted sovereign immunity in a subsequent court action
challenging a UDRP transfer decision.

Paragraph 4(k) is arguably one of the most fundamental and important
provisions in the UDRP and was ostensibly included to ensure that
registrants did not lose the right which they enjoyed to commence court
proceedings prior to the establishment of the UDRP. It is therefore
inappropriate to be recommending substantive changes to this crucial
provision of the UDRP merely to address a discrete concern of IGO’s,
without taking into account how such changes may affect the underlying and
fundamental balance which the UDRP has achieved. Such considerations, if
not beyond the remit of the IGO WG, are certainly within the remit of the
RPM WG, which is better equipped to have that discussion given its mandate
and participants.

The apparent split between the ‘Option A’ camp and the ‘Option C’ camp is a
good indication that this issue is so controversial that it cannot be
reasonably determined within the limited context of IGO’s only, but rather
is best dealt with through UDRP review in the RPM WG. If there were a
solution available to the IGO WG that enabled a solution without opening up
the UDRP in such fundamental ways, then it likely would have engendered
wider support than we are seeing now.

Second, it may come as somewhat of a surprise to some members of the RPM WG
that changes are being recommended to the UDRP by the IGO WG, as many may
have reasonably understood that it was only the RPM WG which had a mandate
to review the UDRP and recommend substantial changes to fundamental
provisions with far reaching implications. It may even be somewhat
embarrassing to be recommending such substantial changes when it is
apparent that not all interests are represented in the IGO WG, including
but not limited to the noticeable absence of IGO’s themselves.

Third, this IGO WG has conducted itself admirably and thoughtfully over a
long period of time and has reached consensus on most issues. It would be a
shame to allow this success to be diminished by such pronounced divisions
on this last remaining issue, with two primary camps maintaining their
positions in favor of Option A and Option C, respectively. It would be far
better to be able to include in the final report, very strong consensus
amongst all IGO WG members on all issues. Otherwise, it appears that
support between the two primary options is split, without a firm mandate to
recommend either proposal, and this outcome would detract from the WG’s
accomplishments unnecessarily. Furthermore, it is of little utility to be
recommending any particular option with such a weak level of consensus. It
is far preferable to be in a position to make recommendations that enjoy
strong consensus, and in the absence of that, it is more appropriate to
refer this controversial issue to the RPM WG where it can be considered
within the context of a review of the UDRP including the balance which it
has enjoyed to date.

Yours truly,

Zak

Zak Muscovitch

Muscovitch Law P.C.

446 Eglinton Avenue West

Toronto, Ontario, Canada M5N 1A5

TEL: 416-924-5084

FAX: 416-920-6306

TOLL-FREE: 1-866-654-7129

Http://www.Muscovitch.com <http://www.muscovitch.com/>

Http://www.DNattorney.com <http://www.dnattorney.com/>

*From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] *On
Behalf Of *Mary Wong
*Sent:* December-11-17 12:13 AM
*To:* gnso-igo-ingo-crp at icann.org
*Subject:* [Gnso-igo-ingo-crp] Action items from Working Group call this
past Thursday

Dear all,

The following were captured as Action Items by staff from the last Working
Group call, held on Thursday 7 December:

   - Working Group members who support the suggestion that a general
   recommendation be made, to refer the question of balancing the rights of
   IGO complainants with those of registrants (vis-à-vis the scenario where a
   losing respondent in a UDRP files proceedings in a national court and the
   IGO complainant succeeds in pleading jurisdictional immunity and including
   a possible refinement/modification of Paragraph 4(k) of the UDRP), to the
   RPM Review Working Group are to develop a specific proposal for full
   Working Group discussion at the meeting this coming Thursday (14 December);
   and

   - George Kirikos to circulate updated specific language, if possible, in
   relation to Option 6 for Working Group consideration.

Thanks and cheers

Mary

*From: *Mary Wong <mary.wong at icann.org>
*Date: *Wednesday, December 6, 2017 at 18:08
*To: *"gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
*Subject: *Topics for discussion on Working Group call today

Dear all,

As a reminder, please note that for the Working Group call that is coming
up in a few hours, the co-chairs plan to focus on discussing a possible
Recommendation 3 and finalizing a possible approach to the various Options
that have been under discussion.

To that end, staff is re-circulating the pre-ICANN60 preliminary poll
results so that members may review the specific language for Options A-C.
In addition, there were also follow-up discussions on this mailing list in
respect of resubmission by George Kirikos of what was called “Option 6” –
you can find these email threads here:

   -
   http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000944.html
   and
   -
   http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/000957.html

Staff has in the meantime updated the draft excerpts document that was
discussed on the call last week, concerning language for Recommendations 1,
2 and 4. We will circulate the update separately for members to ensure that
our updates accurately capture what was discussed and agreed.

Thanks and cheers

Mary

Thanks and cheers

Mary
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