[Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations and Remaining Options

Zak Muscovitch zak at muscovitch.com
Thu Jun 7 18:23:10 UTC 2018

Dear WG members:

Further to the below request for a response to the consensus call, please
see my below response:

   1. I generally support Recommendation #1. I would clarify however, that
   no “substantive” changes are required (i.e. thereby leaving open the
   possibility of procedural changes).

   1. I generally support Recommendation #2, with the caveat that an IGO
   can demonstrate its rights by showing common law or unregistered rights in
   a name, for which 6ter compliance can be used.

   1. I generally support Recommendation #3, and would add that if any
   procedural adjustments are required to provide greater clarity, that would
   be consistent with my suggested revision to Recommendation #1.

   1. I generally support Recommendation #4, however I would note that any
   exploration of feasibility for providing subsidies to increase access to
   justice, should be means tested and should not necessarily be restricted to
   IGO’s, and I would convey this thought in the Recommendation.

   1. I support *Option 4* of Recommendation #5, which I had proposed
   compromise solution in the absence of universal agreement on which
   Recommendation this WG makes. I realize that it is not an ideal outcome,
   but it attempts to balance the perspectives of those who support Option 1,
   with those that think that a substantial revision to the Policy is required
   to accommodate IGO interests. In the latter case, such changes IMHO would
   necessarily have to be undertaken within the broader mandate of the RPM WG
   which will be looking at the UDRP as a whole.

I do however, support *Option 1* in principle, though I suggest that the
word, “vacated” be used instead of “vitiated”. The reason for my support of
Option 1 in principle, is that as Mr. Tattersfield has pointed out on
numerous occasions, any IGO that commences civil legal proceedings against
any stranger for any matter, would necessarily as a matter of course,
implicitly waive the jurisdictional immunity that it otherwise has, and I
see no reason that the UDRP should be any different.

I would also support *Option 2,* as it would be an interesting and
reasonable compromise that would drive potentially better policy making.

I understand *Option 3* and appreciate the objective and rationale behind
it, although I cannot support it in its present form. Nevertheless, it is a
creative solution and attempted compromise. My concerns with it are
substantial and twofold;

a) Any party that commences a civil legal proceeding of any kind against a
stranger ipso facto voluntarily and implicitly waives immunity if they have
it to begin with, and Option 3 attempts to allow IGO’s to at once avail
themselves of the UDRP procedure without giving up their immunity – which
as aforesaid – is unjustifiable IMHO since it allows ‘sucking and blowing’
at the same time. Furthermore, registrants have a well founded right to go
to court, which they understandably do not want to give up, nor should they
be compelled to give it up, particularly since being subjected to the UDRP
in the first place involved a grand bargain wherein they would not lose the
right to go to court; and

b) Notwithstanding the foregoing objections, I can nevertheless see how
this solution could in principle provide a remedy to this intractable
situation which inevitably pits the rights of IGO’s against the rights of
registrants (as Dr. Swaine pointed out), but to effect a solution such as
this, there would have to be substantial safeguards for the rights of
registrants in terms of the nature of the arbitration, such that it would
be an attractive trade-off for losing (what many registrants consider to
be) the inalienable right to go to court to protect one’s rights and
assets, and as presently envisioned I am not satisfied that is the case. As
such I am unable to support it. For example, a registrant having to go to
court to fight of an immunity claim, or for that matter, an IGO having to
go to court to make an immunity claim following a UDRP, seems like an
unnecessarily burdensome step for both parties, albeit likely rare.
Moreover, the nature of the proposed arbitration at this time is
insufficiently clear and therefore provides me with an insufficient basis
for considering it to be an adequate substitute for court proceedings.

If however, I did see a procedure and arbitration framework which provided
sufficient comfort and attractiveness such that it was a reasonable and
justifiable alternative for registrants in exchange for their right to go
to court, that is something that I would further consider.

I would also support *Option 5*, which would provide a creative way of
allowing a court action without necessarily naming an IGO, however I am
uncertain as to whether in rem actions are universally available in all

I would also support *Option 6 *in principle, as mediation can potentially
solve many disputes, not just for IGO’s but for UDRP Complainants and
Respondents generally. I am uncertain however, where the funding would come

Yours truly,

Zak Muscovitch

*From:* Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> *On Behalf
Of *Steve Chan
*Sent:* June-05-18 12:02 PM
*To:* gnso-igo-ingo-crp at icann.org
*Subject:* Re: [Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's
Recommendations and Remaining Options

Dear WG Members,

This message is to remind you all that your response to the consensus call,
initiated on 25 May, must be sent to the email list by *Friday, 8 June *in
order for it to be taken into proper account in the WG Chair’s assessment
of consensus levels. Please see the original message below for further

Note, due to availability issues, we are expecting to move the WG’s next
meeting, originally intended for Thursday, 14 June, to Tuesday, 12 June.
You can anticipate receiving a meeting invitation in the near future.



*From: *Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf
of Steve Chan <steve.chan at icann.org>
*Date: *Friday, May 25, 2018 at 3:19 PM
*To: *"gnso-igo-ingo-crp at icann.org" <gnso-igo-ingo-crp at icann.org>
*Subject: *[Gnso-igo-ingo-crp] CONSENSUS CALL on the WG's Recommendations
and Remaining Options

Dear WG Members,

Attached, please find the compilation of the Working Group’s
recommendations and six (6) options related to Recommendation 5. *This
message is intended to kick of the consensus call process for the WG’s
recommendations and remaining options under Recommendation 5.* For those WG
members who wish to participate in the consensus call, we ask that you
respond on the email list to note your support or non-support for all
recommendations (i.e., recommendations 1-4) AND the six (6) remaining
options under recommendation 5. *Please provide your response on or before
Friday, 8 June.*

Subsequently, the WG Chair will consider response to the consensus call and
seek to designate final consensus levels on the recommendations and
options, which will be published to the WG’s email list for WG
consideration. WG members will then have the opportunity to object to the
designations and the WG may choose to conduct another call on Thursday, 14
June to discuss; WG members will also have the opportunity to file minority
statements if applicable, which will be incorporated into a Final Report
for the Council by 17 June.

Note, based on the discussion on the WG’s call held on Friday, 25 May, a
handful of changes were made to the attached recommendations/options
document, highlighted in yellow (e.g., Recommendation 2, Recommendation 4,
Option 4). In addition, footnotes were added, linking to the original
rationale and suggestions made by Zak Muscovitch (Option 4), George Kirikos
(Option 5) and Paul Tattersfield (Option 6). The same was not done for the
first three options as those had been discussed extensively before the
additional three options were added and are included unchanged from the
text presented in the October 2017 poll.

If you have any questions, please let us know.


Steve & Mary

*Steven Chan*

Policy Director, GNSO Support


12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536

steve.chan at icann.org

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