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

Thu Jun 7 23:14:32 UTC 2018

I generally agree with and support Zak's comments, with the specification
that I do not support option 3 (of recommendation 5), which would attempt
to strip the registrant of her/his/its right to go to court.

Sincerely,

Jay Chapman

On Thu, Jun 7, 2018, 12:23 PM Zak Muscovitch <zak at muscovitch.com> wrote:

> 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
> jurisdictions.
>
>
>
> 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 from.
>
>
>
> 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 details.
>
>
>
> 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.
>
>
>
> Best,
>
> Steve
>
>
>
> *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.
>
>
>
> Best,
>
> Steve & Mary
>
>
>
>
>
>
>
>
>
>
>
>
>
> *Steven Chan*
>
> Policy Director, GNSO Support
>
>
>
> *ICANN*
>
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>
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>
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>
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