[Gnso-igo-ingo-crp] Paul Keating's Concensus Votes

Fri Jun 8 11:51:53 UTC 2018

Petter and Mary,

I have been unable to respond to prior emails this week.  However, I wanted
to reiterate my position regarding the various options.  Below is my email
of May 8, 2018.    My response to #6 was subsequently modified to a Yes,
Accordingly, please note my consensus votes as follows:

Option 1:  YES
Option 2:  NO
Option 3:  NO
Option 4:  YES
Option 5:  NO
Option 6:  YES

In case I am unable to attend the upcoming call please note the above for
the record.

Thank you,

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email:  Paul at law.es

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From: Paul Keating <Paul at law.es>
Date: Tue, May 8, 2018 at 9:17 AM
Subject: Re: [Gnso-igo-ingo-crp] Public Display of Possible Consensus
To: Paul Keating <Paul at law.es>, George Kirikos <icann at leap.com>,
"gnso-igo-ingo-." <gnso-igo-ingo-crp at icann.org>

Having been asked by several people for my reasoning behind my votes, I
thought I would simply post it openly.

Option 1:  Yes.

This is a simple solution that returns the process to a balance.  It
leaves the IGO with the complete freedom of choice (just as it had in
filing the UDRP).  The consequence (voiding the UDRP) is a simple and
easily understood consequence of seeking the benefit of immunity AND does
not bog us down in discussions as to whether immunity existed or whether
it had already been waived by the IGO via the UDRP filing.

Option 2:  NO.

Although a nice attempt to seek compromise, I found it too confusing and
feared it would lead to us becoming bogged down in discussion over details.

Option 3:  NO.

I am most opposed to the idea of this WG attempting to create any form of
alternative dispute system.  This is more appropriately addressed by a
wider and more fully functioning WG such as that addressing the RPM.

Option 4:  YES.

I am fully in favor of suggesting that the other WG handle this matter.
They are a larger group with more professionals on board.  They are also
experienced in tackling complex issues.  I know this because I am a member
of both this and the RPM WG.

Option 5:  NO.

Issues of ³in rem² and declaratory relief are inherently common law
principles and are not shared by many jurisdictions, including those based
upon civil law (that which looks only to statutes and not to prior
judicial decisions as the reference point).  This would require too much
discussion by this WG to achieve true consensus as to what is or is not
involved in turning this option into the more robust descriptions
necessary.  Also, I have had no difficulty in dealing with post-UDRP
claims based upon this distinction (suing a party or suing a thing).  I
also am unsure if a US in rem action would be permitted to continue in the
absence of an IGO that successfully asserted sovereign immunity.  So,
overall, too complex for this WG given its directive.

Option 6:  NO.

I STRONGLY favor any form of mediation and have previously provided my
thoughts and concerns over the Nominet program.  I ENCOURAGE Brian and
anyone else (at either WIPO or NAF) to initiate such a program.
Initiating such a program would not require any modification to to the
UDRP as it could be entirely voluntary.  HOWEVER, to the extent that this
Option 6 would require discussion and consensus surrounding the rules
underlying an obligatory mediation program, such is beyond the scope of
this WG and not likely to have a successful outcome, particularly given
what has been transpiring in this WG to date.

So, there you have my thoughts.

I ENCOURAGE all WG members to respond to George¹s email regardless of your
views.

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email:  Paul at law.es

THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN
INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE.  THE
INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO
WHOM IT IS ADDRESSED.  IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF
PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO  PLEASE DELETE THE
EMAIL AND ANY ATTACHMENTS.

Circular 230 Disclosure: To assure compliance with Treasury Department
rules governing tax practice, we hereby inform you that any advice
contained herein (including in any attachment) (1) was not written or
intended to be used, and cannot be used, by you or any taxpayer for the
purpose of avoiding any penalties that may be imposed on you or any
taxpayer and (2) may not be used or referred to by you or any other person
in connection with promoting, marketing or recommending to another person
any transaction or matter addressed herein.

NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN
ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS
FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT,
WHICH THIS IS NOT.  IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED
HEREIN SHALL CONSTITUTE LEGAL ADVICE

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