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

Wed Dec 13 17:51:38 UTC 2017

Makes sense to me, Paul - thanks!

Sincerely,
Jay

On Wed, Dec 13, 2017 at 11:47 AM, Paul Keating <Paul at law.es> wrote:

> Zak,
>
> While I agree that changes to the UDRP should be handled by the RPM WG, I
> do not believe our recommendation should be limited to simply kicking the
> can down the road.
>
> I believe that our initial report and recommendation (that no change is
> required) remains valid and should be reflected in the published report of
> this WG.  I would also suggest that our report conclude with a statement
> that even if a change were advisable or appropriate, such would necessarily
> require modifications to the UDRP and its accompanying rules.  As such
> changes are within the ambit of the RPM WG, we feel it inappropriate to
> inject our proposals in that regard,  Your proposal could then form a part
> of that concluding comment.
>
> What I DO NOT agree with, however, is limiting our report to simply
> forwarding the issue to the RPM WG.  IF the RPM WG takes up this issue it
> should be with the full benefit of the report of this WG.
>
> Regards,
>
> Paul Keating
>
> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf
> of Zak Muscovitch <zak at muscovitch.com>
> Date: Monday, December 11, 2017 at 8:54 PM
> To: Mary Wong <mary.wong at icann.org>, <gnso-igo-ingo-crp at icann.org>
> Subject: Re: [Gnso-igo-ingo-crp] Action items from Working Group call
> this past Thursday
>
> 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 <(416)%20924-5084>
>
> FAX: 416-920-6306 <(416)%20920-6306>
>
> TOLL-FREE: 1-866-654-7129 <(866)%20654-7129>
>
> 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-Novembe
>    r/000944.html and
>    - http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-Decembe
>    r/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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