[Gnso-igo-ingo-crp] Consensus Process concerns -- settling on designations

Mon Dec 18 12:50:15 UTC 2017

Paul,

Well stated but I would go you 1 further:

In the context of option (a) the IGO has expressly waived immunity by having
registered the domain name.  As you known the RA expressly obligates the
registrant to participate in the UDRP AND agree to be subject to specific
jurisdiction in the event of a dispute arising out of or In connection with
the domain. 

Personally, I am stuck at the point where one realizes that no IGO has come
forward even asserting that this has been an issue for them and all evidence
is to the contrary in that IGOs have in fact used the UDRP in the past.

Paul

From:  Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of
Paul Tattersfield <gpmgroup at gmail.com>
Date:  Sunday, December 17, 2017 at 1:46 PM
To:  George Kirikos <icann at leap.com>
Cc:  "gnso-igo-ingo-." <gnso-igo-ingo-crp at icann.org>
Subject:  Re: [Gnso-igo-ingo-crp] Consensus Process concerns -- settling on
designations

> George,
> 
> I share your concerns about the way the working group is being driven.
> 
> In my proposal I made it very clear that I do not believe that the IGOs have
> any rights to immunity after they have chosen to initiate the proceedings.*
> 
> This is clearly an overarching issue that affects all options.
> 
> And as such. needs to be considered by the working group before we progress to
> considering options (solutions) because if I am correct the final report is
> going to require a substantial re-write.
> 
> 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 (a) 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 from the working group¹s draft report (page 17):
> 
> There is no single universal rule that is applicable to IGOs¹ 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)
> 
> 
> On Thu, Dec 14, 2017 at 7:25 PM, George Kirikos <icann at leap.com> wrote:
>> Hi folks,
>> 
>> After today's call, I'm very concerned about the co-chairs' suggested
>> path forward, which I disagree with.
>> 
>> In particular, page 9 of the working group guidelines talks about a
>> "recommended method" for discovering the consensus level designation
>> on recommendations.
>> 
>> http://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-01sep16-en.pdf
>> 
>> "The recommended method for discovering the consensus level
>> designation on recommendations should work as follows:
>> i.    After the group has discussed an issue long enough for all
>> issues to have been raised, understood and discussed, the Chair, or
>> Co-Chairs, make an evaluation of the designation and publish it for
>> the group to review."
>> 
>> It's unclear when the deadline for "all issues to have been raised,
>> understood and discussed" is, and how the Co-Chairs intend to use
>> those discussions to make the designation.
>> 
>> For example, some of the proposals were put forth in their final form
>> just in the past 24 hours (e.g. Zak's, my proposal #6, Paul
>> Tattersfield's proposal). Based on all the discussion that has taken
>> place, none of these new options have received much disagreement or
>> opposition, and indeed there might be "Full consensus" if one goes by
>> the standard of page 8 of the above document.
>> 
>> The process is also supposed to be iterative.
>> 
>> Instead, we appear to be heading to the use of yet another anonymous
>> poll, rather than having full working group discussions on these
>> matters. Polls are supposed to be "rare", and also "care should be
>> taken in using polls that they do not become votes." And the operating
>> procedures appear to be against the use of anonymity in polls, saying
>> (at the bottom of page 9) "However, in all other cases.....their name
>> must be explicitly linked, ****especially in those cases where polls
>> where (sic) taken.****" (emphasis added)
>> 
>> So, not only do we appear to be heading to use of a poll, I'm
>> concerned that those polls will be misused as votes, and not attach
>> names to the votes/positions either.
>> 
>> Page 10 of the procedures even says clearly that "Consensus calls
>> should always involve the entire Working Group and, for this reason,
>> ****should take place on the designated mailing list***** to ensure
>> that all Working Group members have the opportunity to fully
>> participate in the consensus process." (emphasis added)
>> 
>> The use of an anonymous poll hosted on a 3rd party platform seems
>> inconsistent with that consensus happening on the mailing list.
>> 
>> Furthermore, let's suppose "several participants" (language of page
>> 10) openly disagree with a designation. How will the Co-Chairs answer
>> that? It appears to me that anonymous polls will by necessity be
>> pointed to as votes under that scenario, i.e. they'll say "well, we
>> had 10 people in the poll support that position, and 5 people not
>> support it." Polls would turn into votes that are given more weight
>> than those who actually participated actively on the calls and on the
>> mailing list, fully articulating their positions and engaging in the
>> debate. That does not seem correct to me.
>> 
>> In my view, we should perhaps do things a different way. I would
>> suggest we start 6 new topics organized directly on the mailing list
>> (as recommended on the working group guidelines) for (separate subject
>> for each thread):
>> 
>> (a) Option A
>> (b) Option B
>> (c) Option C
>> (d) Zak's proposal finalized today (can call it Option D)
>> (e) my proposal of last night, final language of Option #6 (call it
>> Option E, or can incorporate it into Option C if the backers of that
>> proposal saw it as part of Option C)
>> (f) Paul Tattersfield's proposal of today (can call it Option F, or
>> break it up into subparts, e.g. Mediation aspect as F1, another aspect
>> as F2, etc.)
>> 
>> Then we can have a robust, open and transparent discussion that
>> everyone can participate in (in parallel with the weekly calls). Those
>> who support an option can have a dialog with those who don't support
>> it. Positions will evolve and people's views might change based on
>> those discussions. That contrasts starkly with "polls" which are
>> static, non-evolving and just a snapshot of a "position statement".
>> Levels of consensus will be directly observable in those discussions.
>> 
>> Some of the options above are not mutually exclusive, either, and it
>> seems that the proposed poll doesn't reflect that. e.g. one can be in
>> favour of Zak's proposal *and* Option 6 and Option A, yet that
>> wouldn't be captured if someone just picks a single option.
>> 
>> Also, a multi-phase approach might also make sense. If there was a
>> broad consensus for Zak's proposal in a first phase  (referring these
>> quirks of process which affect registrant's rights to the RPM PDP),
>> then it trumps the other options. It seems that question should be
>> decided first. If there wasn't a broad consensus for it, then the next
>> step would be to check whether the other options have a consensus or
>> not.
>> 
>> We ran out of time today to fully address these process concerns, so
>> I'd appreciate the input of others who might be concerned, especially
>> those who could not attend the call.
>> 
>> Sincerely,
>> 
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
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> 
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