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

Petter Rindforth petter.rindforth at fenixlegal.eu
Thu Jun 7 23:39:37 UTC 2018

Dear All,

Thank to those of you that have made your voice heard during the official response time of our WGs “CONSENSUS CALL ON FOUR POLICY RECOMMENDATIONS & SIX ADDITIONAL OPTIONS FOR A POSSIBLE RECOMMENDATION FIVE”
Here is my own response:

I support Recommendation#1.

I support Recommendation #2.
I support Recommendation #3.

I support Recommendation #4 in its latest version.

I support Option 3 of recommendation #5:

Option 3is definitely the best solution. It takes into consideration the legal aspects of both groups of interest: the IGOs as well as the domain holder. Especially if we include the possibility for the parties to utilize the limited arbitration mechanism at any time prior to the registrant filing suit in a court of mutual jurisdiction, and further investigating the possibilities of made the decisions faster in order support both groups of interest (IGO’s as well as domain holders).
Arbitration, promoted as a way to resolve disputes efficiently, proponents of arbitration commonly point to a number of advantages it offers over litigation, court hearings, and trials.

Avoids hostility:Because the parties in an arbitration are usually encouraged to participate fully and sometimes even to help structure the resolution, they are often more likely to work together peaceably rather than escalate their angst and hostility toward one another, as is often the case in litigation.
Usually cheaper than litigation:There are also developed possibilities for online arbitration, that can cut the costs and time, and will work out very well when it comes to domain name disputes.

Faster than litigation:A court case normally takes from 18 months to three years to wend its way through the courts.
Flexible:Unlike trials, which must be worked into overcrowded court calendars, arbitration hearings can usually be scheduled around the needs and availabilities of those involved, including weekends and evenings.

Simplified rules of evidence and procedure:The often convoluted rules of evidence and procedure do not apply in arbitration proceedings -- making them less stilted and more easily adapted to the needs of those involved.
Private:Arbitration proceedings are generally held in private. And parties sometimes agree to keep the proceedings and terms of the final resolution confidential. Both of these safeguards can be a boon if the subject matter of the dispute might cause some embarrassment or reveal private information, such as a company's client list (meaning for example the list of users of the domain holder).
Option 1will not solve the problem. We know - from inputs of GAC and IGO’s – that this is not accepted. And, independent from Prof. Swain’s report: it is not clear how all national courts around would deal with the “jurisdictional immunity”. If they accept, and it is the domain holder that has taken the case to court, the system is indeed not neutral to both parties. Also the domain holders need to have the possibility to have the case handled by a court or arbitration forum.

Also, as we know that IGO’s are clearly against this option, a vote for Option 1 will be a clear signal to IGO’s to ask the Board directly to create a separate dispute resolution system for IGO’s. This will not solve any problems for domain holders…or IGO’s.

Option 2is an unworkable mix of option 1 and option 3, and thereby not solving the topic. Also, as explained before by Mr Kirikos on a direct question: the meaning of “creation date” is the date when a domain name was initially registered, not taking into consideration that it may have been transferred a number of times after that to other domain holders.Option 2 is definitely not a solution.
Option 4,asformulated,is still not acceptable. Our WG shall make our independent decisions and recommendations. The result of our work can thereafter independently be used as a possible guideline when deciding on URS and UDRP in general,

Option 5is likely not to be useful and acceptable world-wide. “In rem” is not a globally clear solution or accepted by courts in general.
Option 6:Mediation may work also in some kind of domain disputes. It is established in some ccTLD disputes as a first step. However, from what I have seen in some ccTLD’s using mediation, is that it is in most cases only a step that both parties need to pass on – with no result – in order to get to the final proceeding. It will definitely not work for URS, as this is already a fast procedure. It may be something to further discuss generally when we talk about possible changes of the UDRP (and can therefore be a part of our recommendation for that WG to consider, or each members of this WG is free to make their own separate recommendations in the RPM WG).

Best regards,

Petter Rindforth, LL M

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Thank you

5 juni 2018 18:02:22 +02:00, skrev Steve Chan <steve.chan at icann.org>:

> 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 Junein 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
> 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
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