[Gnso-igo-ingo-crp] [Ext] A way forward that actually helps the IGOs in the real world

[Mary Wong]

Hello everyone,

Thank you for the continued discussion and suggestions. The co-chairs plan to discuss them and propose a way forward on the Working Group call that will be taking place in just over an hour’s time. We hope that all Working Group members, if available, will be able to participate on the call or otherwise provide their input to the discussion.

Sent on behalf of Phil and Petter,
Mary

From: Paul Tattersfield <gpmgroup at gmail.com>
Date: Thursday, December 14, 2017 at 05:49
To: "gnso-igo-ingo-." <gnso-igo-ingo-crp at icann.org>, Mary Wong <mary.wong at icann.org>
Subject: [Ext] A way forward that actually helps the IGOs in the real world


Rather than spending an inordinate amount of time on what is effectively a quirk of process, it would make much more sense to put in place solutions that would actually help an IGO seeking to initiate UDRP proceedings whilst at the same time not removing any rights from registrants defending their domain.

Given the IGO is clearly initiating proceedings much of the reasoning on immunity in the Swaine Report and the working group’s own draft report is not relevant.**

I therefore respectfully suggest that the working group takes a step back from the consensus vote and looks at what practical measures can easily be implemented to actually provide some tangible benefits.


Outcomes

Firstly the working group outcomes need to be separated from the options to prevent some working group members conflating them to instil fear of report rejection etc. but once we are at that point then the working group has a lot of options and can seek to genuinely help all parties resolve their disputes, not just those that are subjected to a highly unusual (if not even never occurring) quirk of process.

I personally would do something like below but it really depends on how long people want spend on each aspect.


Mediation

Private mediation is a very simple improvement: If it gets a percentage* of disputes dealt with faster and/or at a lower cost then that has to be a good thing all round. We should arrange for the UDRP providers provide it at no cost to the parties.

* I understand from the Nominet presentation earlier in the week that around 30% of disputes are settled this way in their dispute process, which is very impressive given the low cost to both parties.


Arbitration

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.

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.

I’m personally quite comfortable with arbitration as long as it is a free choice for the registrant, I’m aware other working group members are really opposed to it, but I don’t see a problem if it's just another optional track. It also helps in situations where the judicial route is not available.

If I wanted more people to choose it, the working group could set out a framework, but it needs to be faster, cheaper and less risk involved (i.e. name only etc.) for registrants to choose to go that way.


Refusal to participate in proceedings

Where an IGO refuses to take part in judicial or arbitral proceedings I would quash any UDRP determination decision.

My guess is if we could get all this done then the working group will have done a pretty good job. If people are concerned with ensuring that IGO and non-IGO disputes are all to be treated identically we can easily re-align the two routes by recommending that our working group sunsets our recommendations upon the implementation of the All RPM Working Group’s findings.

Best regards,


Paul.



** Why the IGOs are never entitled to an immunity defence

Absent UDRP there are two possible ways the immunity question could come before a court:

(a) A TM owner seeks to acquire a domain which an IGO has registered
(b) An IGO seeks to acquire a domain which a domain registrant has registered

In (a) the IGO would be entitled to raise an immunity defence
In (b) the IGO would be required to waive immunity for the court to consider the matter.

As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both cases.

(a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP
(b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP

The working group has not looked at (a) which hides the fact that in (b) the IGO is never entitled to immunity under any circumstances after initiating an action.

Most of the reasoning in the Swaine report applies to (b) and is therefore not relevant to the working group's report as we are not considering (a) the case where a TM holder initiates UDRP proceedings against an IGO.

For example the working group’s draft report (page 17):

There is no single universal rule that is applicable to IGOs’ jurisdictional immunity globally. Rather, such immunity is essentially contextual - IGOs generally enjoy immunity under international law, but different jurisdictions apply the law differently, and even within the same jurisdiction different IGOs may be treated differently:

Including this is clearly incorrect as this reasoning can not be applied to (b) and the report does not consider (a)
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