[Gnso-igo-ingo-crp] Options Related to Recommendation 4: Provisional Agreements and Request for Response

[Jay Chapman]

Thanks, Steve.

While the WG's discussions of late have delved into how particular
variations of an option 2 might work and play out if selected, in the big
picture there has been no consensus/acquiescence to any particular option
appendage to Rec 4.  We are simply listening, discussing and considering.

Sincerely,
Jay Chapman

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On Tue, Sep 19, 2017 at 7:10 PM, George Kirikos <icann at leap.com> wrote:

> Hi folks,
>
> Just to be clear, I don't believe this PDP or working group has made a
> "provisional agreement" on anything in relation to Recommendation 4 at
> this time. In particular, various options were discussed in terms of
> incorporating elements of Options #3 and #6 into Option #2, in order
> to making it more palatable to those who are in favour of other
> options (i.e. those who favour Option #1, or Option #4, etc).
>
> My understanding has been that those suggested improvements to the
> bare Option #2 will *then* be presented as a potential package for
> consideration, *along* with the existing options that are still on the
> table (which haven't been dismissed). And when it comes time have a
> consensus call/vote, we can see which option(s) win the support of the
> group.
>
> So, to the extent that there's "provisional agreement", it's only to
> the extent of how to *supplement* the bare Option #2, without
> prejudice to any other options that still exist.
>
> If we want to be explicit about rankings, I'm still of the view that
> the best choices are roughly (in order from best to worst):
>
> (a) Option #1 (set aside the UDRP decision if the IGO successfully
> asserts immunity in court)
> (b) Option #4 (i.e. Option #1 for existing domains, Option #2 for
> newly created ones)
> (c) Option #3 + Option #6 as a package (to capture the in-rem and
> quasi in-rem elements)
> (d) Option #2 strengthened with elements from Options #3 and #6 (what
> we've been discussing the past few weeks), as a package
> (e) Option #2 alone (arbitration if IGO successfully asserts immunity in
> court)
>
> but at this point, the broader PDP membership hasn't yet weighed in,
> to see which option(s) do have consensus support.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
>
> On Tue, Sep 19, 2017 at 5:02 PM, Steve Chan <steve.chan at icann.org> wrote:
> > Dear WG Members,
> >
> >
> >
> > Below, please find an email sent on behalf and at the request of the WG
> > co-chairs.
> >
> >
> >
> > On the 14 September WG call, in further discussing the options related to
> > Recommendation 4, we reviewed an updated diagram (attached) and
> considered
> > the two specific questions below. On the call, the WG reached provisional
> > agreement as follows.
> >
> >
> >
> > Should limitation of the court review or arbitration to disposition of
> the
> > domain name require mutual agreement of the Respondent and IGO, or
> should we
> > recommend that limitation for one or both appeal forums?
> >
> > If this WG were to recommend that court review be limited to ownership of
> > the domain name, it appears unlikely that ICANN policy would prevent a
> court
> > of mutual jurisdiction from exploring all remedies that it has access to.
> > However, parties could be encouraged or at least be made aware that
> judicial
> > appeals could be limited to ownership of the domain name. We anticipate
> that
> > the Respondent, by forgoing its ability to seek monetary damages or
> > injunctive relief, could reasonably expect that the IGO (complainant)
> would
> > forgo its ability to assert a defense of judicial immunity.
> > Arbitration could be limited to the disposition of the domain name in
> > recognition that this option, coming after an IGO’s successful assertion
> of
> > an immunity defense, provides an avenue of additional appeal that is
> > unavailable to Respondents at present; as well as that an arbitration
> body
> > has little or no power to enforce a money judgment or injunction against
> an
> > IGO.
> >
> > Should the Respondent be permitted to choose to go directly to
> arbitration
> > rather than judicial appeal if it wishes to?
> >
> > The WG agreed that respondents should be allowed to file an arbitration
> > action after the UDRP/URS is concluded in the IGO’s favor if it wishes to
> > avoid the costs and lengths of a judicial appeal. However, the WG also
> > discussed and is now posing the following questions: In addition to the
> > previous allowance, should respondents also be permitted to file an
> > arbitration action before or during the pendency (pre-decision) of a
> UDRP?
> > Should such pre-decision filing require mutual agreement of the IGO
> > complainant?
> >
> >
> >
> > The co-chairs encourage all WG members, especially those who do not
> > participate on the WG calls on a regular basis, to provide their feedback
> > and response to the specific questions above. We hope and anticipate
> > completing the Final Report prior to ICANN60 and therefore, your
> feedback is
> > critical in shaping this WG’s final recommendations.
> >
> >
> >
> > Best,
> >
> > Steve
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > Steven Chan
> >
> > Policy Director, GNSO Support
> >
> >
> >
> > ICANN
> >
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> >
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> >
> > steve.chan at icann.org
> >
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> >
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> >
> >
> >
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