[Gnso-igo-ingo-crp] George Kirikos comments on July 2, 2018 draft final report, Part 2 (was Re: FOR REVIEW: Updated Draft Final Report)

[George Kirikos]

Hi folks,

I hope our US members are enjoying the 4th of July holiday.

Continuing from yesterday's email which had "Part 1":

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-July/001345.html

here are some additional comments on the draft, up to page 27. I would
highlight point #17 as a discussion point, i.e. potentially leaving
expanded text to minority reports, as an alternative to beefing up
that section.

(all page references relative to "Clean" PDF version of July 2, 2018
draft, unless otherwise stated)

15. page 18 - middle paragraph says '1CANN6' (should be ICANN60).

16. page 21 -- "jurosdiction" is a typo

17. pages 17-21 -- recommendation 5 -- each of the sections is very
"light" in terms of description. We could consider either beefing up
each option equally, OR, leave it as is (since each option is
"equally" light), and then permit folks to make their more detailed
descriptions of the costs/benefits of each option in the minority
reports. I think the latter option, given the timeline, might make
most sense. Perhaps the main document can then suggest (in the
beginning of Recommendation 5) that the various proponents/critics of
various options have provided more detailed analysis in the minority
reports, e.g. a footnote right after:

"The final six policy options, with the associated outcome following
the end of the Working Group’s formal consensus call process, were:"

with the footnote referencing the minority reports. I think the
minority reports should be allowed in PDF format, and placed at the
very end of the document (much more easier to merge multiple PDFs
easily that way, and not ruin anyone's formatting, etc.).

18. page 21 -- "This possibility is not new" - footnote 11. We should
refer to the Tribunal Immunity case in the USA as a related "test" of
how courts would answer that question (that it was seen in that case
as a limited waiver of immunity). That's the Windcreek.com dispute
referenced in the email at:
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/000960.html
(and with attachments from the court case).

 Earlier in that paragraph it talks about how the circumstances will
be "rare". We should point out that IGOs have already filed a number
of UDRP cases since 1999 when the UDRP was created, see
https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html
for details (from Footnote in Swaine report), and they've *never* been
appealed to a court.

19. Page 22, first sentence (continuing from page 21): "One concern
that has been expressed in this regard is the need to ensure that no
additional legal rights are created as a result of any consensus
policies developed through the ICANN process."

I would suggest expanding on that by saying (directly after the above):

"It was agreed that ICANN is not the place to create new legal rights,
but instead should reflect underlying legal rights reflected in
national laws. The UDRP and URS were designed to complement, but not
replace or interfere with, existing legal rights of all stakeholders.
To the extent that the current UDRP and URS inadvertently interferes
with or prejudices the rights of parties to have a case decided on the
merits in the national courts, it was felt that putting both parties
back in the same position they would be absent the UDRP/URS was an
appropriate solution."

20. page 26: " the need to recognize and preserve a registrant’s
longstanding right to appeal to a court of competent jurisdiction"

It's not just the "right to appeal". More properly and precisely, it's
a right to have a de novo determination **on the merits** in a court
of competent jurisdiction.

i.e. an "appeal" that is dismissed on a technicality, without
considering the merits of the dispute (e.g. IGO asserting immunity, or
no cause of action in the UK yoyo.email case) isn't sufficient.

21. page 23 (? or thereabouts): A new paragraph should be added to
*emphasize* that immunity is a defense to an action, and that there's
no immunity when an IGO initiates a dispute (i.e. is the complainant).
There should be no expectation of an IGO to have immunity for the
overall dispute , since it's the one initiating it. Had the UDRP/URS
been properly designed, then the IGO should have gained no legal
advantage by filing the UDRP/URS first, compared to the situation
where they simply filed a court action.

Had the UDRP/URS not existed or not been used, the IGO would be the
complainant in a court action, and thus would have no ability to
assert immunity (since it is not the defendant, and only defendants
can assert immunity). However, a court action seeking de novo review
brought by a losing domain name registrant after a UDRP/URS causes the
IGO to be the defendant (rather than the complainant). This role
reversal between complainants and defendants causes a quirk of process
to exist, whereby the IGO (now the defendant) might attempt to assert
immunity as a defense (despite the existence of the mutual
jurisdiction clause), an argument that could not have been made had
the role reversal not taken place.

In other words, the Swaine report wasn't looking at the overall
context of the IGO being the initiator of the dispute. He's taking the
things as they are i.e. accepting the role reversal as it exists,
without questioning these unintended side effects in terms of allowing
immunity to be asserted. The working group members, however, looked at
the overall picture holistically, though, the UDRP/URS was never
intended to advantage any party, create new legal rights, or interfere
with existing legal rights. So, to the extent that these unintended
side effects are "cured" by our recommendations, we've made the
appropriate policy choice, by putting back the two parties in the same
position they'd be absent the UDRP/URS.

22. page 26: "advisable approach would be not to recommend any changes
to the URDP or URS at this time" --- incorrect, as Option #1 is a
change. Can modify to rewrite as:

Ultimately, the Working Group decided, for the following reasons:
[insert 1, 2, 3] that the most prudent and advisable approach was to
recommend Option #1 for Recommendation #5.

However, the list of reasons here is slightly different than the
reasons on page 12 (where there are 5 reasons, not 3). They should be
made identical.

23. page 12, item 3: see point #20 above; it's not just the right to
"bring a case to a court of competent jurisdiction", but a right to
have the case determined de novo on the merits.

24. page 27, footnote 16: can link to the cases in the Swaine report
itself, see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000895.html
which had the cases from the relevant Swaine footnote.

More to come later (today and/or tomorrow), but I thought this would
be a good place to break for lunch.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/