[Gnso-igo-ingo-crp] PLEASE READ: Co-Chairs' proposal for moving forward to determining consensus

Mon Dec 18 19:19:50 UTC 2017

With respect Phil, your reply does not even begin to answer the question I
asked.

The question I asked has nothing to do with option A, B or C. If I am right
substantial sections of the working group report will have to be rewritten.

Therefore please can you answer the question I posed?

Many thanks,

Paul

On Mon, Dec 18, 2017 at 6:55 PM, Corwin, Philip <pcorwin at verisign.com>
wrote:

> Paul:
>
>
>
> Speaking in a personal capacity, I have long viewed Option A for
> Recommendation 3 as embodying the view that an IGO should never be entitled
> to raise an immunity defense, as it would have the prior UDRP decision
> vitiated if an IGO raised such judicial defense and succeeded in it.
>
>
>
> However, whether this WG (or members thereof) believes an IGO should be
> able to raise such a defense would in no way prevent an IGO from doing so
> if a domain registrant sought de novo judicial review, nor could we prevent
> a national court from affirming such a defense and terminating the judicial
> action. That is why Recommendation 3 has focused upon what should happen in
> terms of a policy response in such a scenario. Again, I believe that Option
> A already expresses your viewpoint.
>
>
>
> Best, Philip
>
>
>
>
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> <https://maps.google.com/?q=12061+Bluemont+Way+%0D+Reston,+VA+20190&entry=gmail&source=g>
> Reston, VA 20190
>
> 703-948-4648 <(703)%20948-4648>/Direct
>
> 571-342-7489 <(571)%20342-7489>/Cell
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces at icann.org] *On
> Behalf Of *Paul Tattersfield
> *Sent:* Monday, December 18, 2017 12:41 PM
> *To:* Mary Wong <mary.wong at icann.org>
> *Cc:* gnso-igo-ingo-. <gnso-igo-ingo-crp at icann.org>
> *Subject:* [EXTERNAL] Re: [Gnso-igo-ingo-crp] PLEASE READ: Co-Chairs'
> proposal for moving forward to determining consensus
>
>
>
> Mary, I respectfully disagree with this approach as I believe it hinders
> our attempts to find the correct solution.
>
>
> Please can either of the co-chairs provide a simple written reply
> confirming that they accept the reasoning below * or in the alternative
> that they disagree with it, please can they provide a reasoned explanation
> as to why it should be refuted?
>
> Thanks,
>
>
> 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 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)
>
>
>
>
>
> On Mon, Dec 18, 2017 at 4:46 PM, Mary Wong <mary.wong at icann.org> wrote:
>
> The following email is being sent on behalf of Philip Corwin & Petter
> Rindforth (WG co-chairs).
>
>
>
>
>
> It is the view of the co-chairs that our exhaustive discussion of the
> options for dealing with the potential situation of an IGO successfully
> asserting an immunity claim in a judicial context have reached an end
> point; that all issues relevant to our Charter have been raised, understood
> and discussed; and that further discussion is unlikely to yield additional
> options that enjoy consensus support, or sway the view of Working Group
> participants regarding which option should prevail.
>
>
>
> Therefore, the co-chairs intend to proceed in the following manner:
>
>
>
>    - If a significant number of WG members believe that further oral
>    discussion of the three additional options that will be presented in a
>    final consensus call is needed, supplementing the three that were presented
>    for WG consideration in our preliminary consensus call held in October
>    2017, and that email list discussion is insufficient for WG members to
>    understand the intent and effect of all six options to be included in the
>    consensus call, we will hold a WG meeting on December 21st at our
>    regular time. *Please respond to the mailing list if you believe a
>    call on December 21st is needed*.
>
>
>
>    - On December 22nd, a second poll will be sent to all WG members. The
>    purpose of this poll is to assist the co-chairs in determining the level of
>    support/opposition that each option enjoys. This poll will ask all WG
>    members to designate one of the six options as their preferred choice for
>    addressing the IGO immunity issue. WG members will also be provided with
>    means to add comments regarding that preferred choice, as well as each of
>    the other five options. These comments can indicate support or opposition
>    for each of the options, as well as whatever additional views a WG members
>    wishes to provide. Responses to this poll will be anonymous, although any
>    WG member will be free to share his/her response on the WG email list. *The
>    poll will remain open until Friday January 5th, 2018*. The aggregated
>    results of the poll, as well as all comments, will be shared with all WG
>    members and will be included as a section of our Final Report.
>
>
>
>    - Once the poll closes, the co-chairs will review all responses and
>    then share their views with WG members regarding the level of consensus
>    that each option enjoys. We hope to hold the *first meeting of the WG
>    on January 11th, 2018* in order to discuss poll results and the
>    co-chairs’ evaluation. The GNSO WG Guidelines provide all WG members with
>    an opportunity to provide feedback on those proposed classifications, and
>    the final consensus level for each option included in the Final Report will
>    be determined under the procedure provided in the Guidelines. As soon as
>    that process is completed we will publish a draft Final Report for WG
>    review and comment, and will provide a reasonable time for all WG members
>    to draft and submit Minority views. *We will try to have our Final
>    Report ready for submission to the GNSO Council in order to meet the
>    February 12th, 2018 document submission deadline*, at the latest, for
>    its February 22nd meeting.
>
>
>
> Please let us know if you have any questions about this procedure. Thank
> you.
>
>
>
>
> _______________________________________________
> Gnso-igo-ingo-crp mailing list
> Gnso-igo-ingo-crp at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20171218/dad36f27/attachment.html>