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

Fri Jun 8 18:15:38 UTC 2018

Recognizing that I am somewhat of a newcomer to the group, of the four Recommendations, I support Recommendation One.

Regarding the various options for a possible Recommendation Five, I support Option One.  While Option Four is tempting, I have concerns that kicking it to the RPM WG will result in additional, unjustified and lengthy delays to the finalization of this issue.

Crystal Ondo
VP, Corporate Affairs  ||  Donuts Inc. 
+1.425.919.3563

From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces at icann.org> on behalf of Reg Levy <rlevy at tucows.com>
Date: Friday, June 8, 2018 at 9:17 AM
To: Paul Keating <Paul at law.es>
Cc: <gnso-igo-ingo-crp at icann.org>
Subject: Re: [Gnso-igo-ingo-crp] Paul Keating's Concensus Votes

All—

I'd also like to reiterate my position regarding the options. My vote toward consensus is as follows:

Option 1: YES
Option 2: NO
Option 3: NO
Option 4: GRUDGINGLY YES IF NECESSARY
Option 5: NO
Option 6: NEEDS REFINEMENT BUT MIGHT WORK

My reasoning is:

Option 1 seems the most reasonable under the circumstances and the most fair to both parties to such a dispute.

If, for some reason, option 1 is absolutely untenable, I would grudgingly support option 4. I note, however, that, in order to not be seen as entirely buck-passing with regard to our remit, we ought rather to submit to the RPM WG a strong recommendation to proceed with option 1.

(Option 2 I find unacceptable because I don't find most recent registration date to be sufficiently determinative of an end user's intent to abrogate their rights. Option 3 would be far more elegant if there were simply an appeal process built into URS/UDRP but there isn't, since a losing party can appeal to local courts…except where an IGO is involved. Option 5 is acceptable but in light of the perfectly-reasonable option 4 as a poorer alternative to option 1, unnecessary. Option 6 might be acceptable but would require further refinement.)

I am also vehemently opposed to any subsidization of any party's costs.

I look forward to seeing how many votes each option received.

Thanks,

Reg

--
Reg Levy

Director of Compliance

Tucows

D: +1 (323) 880-0831

O: +1 (416) 535-0123 x1452

UTC -7

On 08 Jun 2018, at 04:51, Paul Keating <Paul at law.es> wrote:

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

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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