[Gnso-igo-ingo-crp] Food For Thought -- Option #7 (?) -- model UDRP/URS after British Columbia's Civil Resolution Tribunal

[George Kirikos]

P.S. We were always struggling to come up with different language in
Option #1 for "vitiated" or "set aside". That system's procedure gives
us another possible phrase to use, namely "decision is not
enforceable".

Sincerely,

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


On Thu, Jun 7, 2018 at 2:59 PM, George Kirikos <icann at leap.com> wrote:
> Hi folks,
>
> Probably too late to come up with new options in this PDP at this late
> stage, but here's some food for thought for how the IGO "quirk of
> process" issue as well as the Yoyo.email "cause of action" issue in
> the UK can be completely solved, with various changes to the UDRP/URS
> process.
>
> In particular, I very recently stumbled upon the "Civil Resolution
> Tribunal", which is Canada's first online tribunal that handles
> various small claims and strata (condominium) disputes in British
> Columbia:
>
> https://civilresolutionbc.ca/
>
> In particular, there's one important part of their rules which (if
> emulated) would completely solve the issues we're having, see:
>
> https://civilresolutionbc.ca/how-the-crt-works/how-the-process-ends/#what-if-i-dont-agree-with-the-decision
>
> "If you disagree with the CRT’s final decision on a small claims
> matter, including a default decision, you can pay a fee and file a
> Notice of Objection with the CRT. The Notice of Objection must be
> filed within 28 days after a party receives a CRT decision. The CRT
> cannot issue an order in a small claims dispute until the deadline for
> filing a Notice of Objection expires. If a Notice of Objection is
> filed, the CRT decision is not enforceable. If any party wants to
> continue any of the claims that were included in the dispute, that
> party must file a Notice of CRT Claim in the BC Provincial Court."
>
> So, basically, if one pays the appropriate fees and files a "Notice of
> Objection", the decision is not enforceable, and further court action
> (in an established offline court) would be required.
>
> In a UDRP/URS context, this means that there'd be no reversal of the
> roles of plaintiff/defendant in the court, compared with the
> complainant/respondent in the UDRP/URS procedure. Thus, the UK cause
> of action issue (from Yoyo.email) doesn't arise, as the TM holder
> would be the complainat in the court case (if the UDRP/URS decision
> became not enforceable). Similarly, there'd be no need for any "mutual
> jurisdiction" clause to be made by a complainant (which may or may not
> be giving up immunity for the IGO). In any event, if there was a
> "Notice of Objection", the IGO would then be the complainant in any
> court case, if they wanted to pursue the matter further.
>
> To prevent "gaming" of the notice of objections, various court costs
> can be assessed in the courts later on, if the party who filed the
> notice of objection did no better in the court. From that same page:
>
> "If the person who filed the Notice of Objection does not have a
> better outcome in the BC Provincial Court than in the CRT’s decision,
> the BC Provincial Court may order that party to pay a penalty to the
> other party"
>
> There are great advantages to such a system, that protect due process
> for all sides, and so it's something we can consider learning from in
> the RPM PDP later on (unless folks want to consider this an Option #7,
> although there'd be more work to be done). It can obviously go along
> with Option #4.
>
> Option #1 essentially accomplishes the exact same thing, preserving
> the natural complainant/defendant rules, without the role reversal.
> The above simply adds the issue of penalties/costs, to prevent any
> gaming.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/