[gnso-igo-wt] FOR REVIEW & DISCUSSION: UPDATED Draft Initial Report (EPDP on Specific Curative Rights Protections for IGOs)

Alexandra.EXCOFFIER-NOSOV at oecd.org Alexandra.EXCOFFIER-NOSOV at oecd.org
Mon Aug 30 12:21:59 UTC 2021

Thank you Mary and team,

I have the following main comments/questions on the documents:

-          In the places there is a mention of immunity “from process” – it should be “from legal process”

-          Section 1.2 of the Draft Initial Report - Haven’t we moved beyond point (1) highlighted below with the registrant having the choice to arbitrate or bring the claim to court? Should we add choice of law?

“However, the EPDP team has not come to an agreed conclusion on the specific questions of (1) whether the parties to a UDRP or URS case should have any review of the initial UDRP or URS determination decided solely through arbitration; and (2) where a registrant prefers to file a case in court in lieu of arbitration, whether that registrant should continue to be able to avail itself of the arbitration option after a court has declined jurisdiction over the registrant’s case based on an IGO’s jurisdictional immunity from legal process.”

I believe the explanations which accompany recommendation 2C describe the issues better:  “…(i) whether the option to arbitrate will remain available to a registrant following the outcome of a court proceeding initiated by the registrant in light of an IGO’s jurisdictional immunity from process, and (ii) what should be the applicable choice of law…”

-          The options for considerations (brackets) do not appear to be correctly placed :

o   Regarding the choice of arbitration vs court, the only brackets should be on what happens where the registrant loses in court on immunity grounds: the original UDRP decision is implemented OR they have a right to request rehearing by arbitration.  The rest of the text above that should remain un-bracketed and the two options should be spelled out; currently there is only the second one, right of rehearing by arbitration

o   Similarly, concerning the options regarding applicable law, I had understood that the group agreed that mutual agreement should always be sought and the registrant/registrar office choice applies only where there is no mutual agreement.  The only bracketed text should be the IGO proposal for the arbitral tribunal to hear from the parties on the choice of law

-          Arbitral rules: please include also Permanent Court of Arbitration (PCA) rules https://pca-cpa.org/en/home/.   Also ICC? (strange that they are referred to in the footnote, but not in the body?)  Also, I am personally not in favour of national rules such as ICDR and I believe this was never discussed as an option in the group.

Thank you,

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> On Behalf Of Mary Wong via gnso-igo-wt
Sent: 26 August, 2021 8:06 PM
To: gnso-igo-wt at icann.org
Subject: [gnso-igo-wt] FOR REVIEW & DISCUSSION: UPDATED Draft Initial Report (EPDP on Specific Curative Rights Protections for IGOs)

Dear all,

At Chris’ request, and to facilitate your review of the Draft Initial Report from this EPDP team, staff has prepared an updated version that incorporates the substantive proposed revisions that Brian had sent to this mailing list on Monday and which also reflects the GNSO Council’s initiation of the EPDP and the outcomes of this group’s Monday call. Please see the first attachment, showing these updates in “redline” format. You should see Brian’s proposed edits and the subsequent staff updates in two different colors, with the staff updates under my name.

To further assist with your review of the actual text of the preliminary recommendations as they currently stand, we have extracted the language (including the square-bracketed options under consideration) for Recommendation #1 and Recommendation #2A, #2B and #2C – please see the “clean” text in the second, separate attachment.

Please also note the following as you review this latest draft report:

  1.  The substantive text of the preliminary recommendations (Section 2.1) is essentially identical to the language that we sent to you following the Monday call; you will see that we have retained a few staff action items in the document, since, from the staff perspective, we think it will be easier to figure out how to best clarify the options and portray the “fork” in the arbitration path when we’re in a position to offer a clean version of the language in question. In addition, the IGOs have also provided a proposed flow chart that you can see in the redlined report.
  2.  The draft report includes the new definition of IGO Complainant (as discussed on Monday’s call); as such, staff has removed all prior references to a lack of agreement amongst the EPDP team on the scope of the definition.
  3.  You should only need to closely review Sections 1, 2 and 3. There is some redlined text in Section 4.1, which follows from alternative text in the previous sections about how to describe immunity and court review, so we can easily update that paragraph after there’s agreement on what the text should actually say.

Thank you. We look forward to working with you to finalize the Draft Initial Report in time to meet our agreed deadline to publish it for Public Comment in early September.

Steve, Berry & Mary

From: Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
Date: Monday, August 23, 2021 at 7:53 PM
To: Chris Disspain <chris at disspain.uk<mailto:chris at disspain.uk>>, "gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>" <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Subject: Following up on today's meeting (EPDP - Specific Curative Rights Protections IGOs for 23 Aug 2021 15:00 UTC Meeting)

Hello everyone,

As Chris indicated in his note (below), please find attached the mark-up of the Draft Initial Report that Brian sent to this list, which staff has updated as follows. We have incorporated: (1) the updated definition of “IGO Complainant”; and (2) the language that Brian, Alexandra and David had proposed to this list (with a small update to address Paul’s concern as noted via email) regarding the outcome of court proceedings where an IGO has not waived immunity and the result is that the court declines to assume jurisdiction.

Both additions can be reviewed in Section 2 of the attached document (starting on Page 8). Staff has made notations in the document about other updates and action items that we will work on this week as well; you can clearly see the staff notes as comments under my name.

We apologize in advance if the redline is difficult to read; however, maintaining this format shows more clearly all the suggested edits from Brian and the IGO representatives. As mentioned, we will be grateful if you can send your concerns and issues for discussion to this list rather than mark up the redline; if helpful, you may wish to mention the relevant section and/or page number along with your comments.

Thank you.

Best regards,
Steve, Berry & Mary

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org<mailto:gnso-igo-wt-bounces at icann.org>> on behalf of Chris Disspain via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Reply-To: Chris Disspain <chris at disspain.uk<mailto:chris at disspain.uk>>
Date: Monday, August 23, 2021 at 12:40 PM
To: "gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>" <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>>
Subject: Re: [gnso-igo-wt] Agenda EPDP - Specific Curative Rights Protections IGOs for 23 Aug 2021 15:00 UTC Meeting

Hello All,

Thank you for a very productive call today. Mary, Steve and Berry will send the 'next draft' of the document out soon. It will be the red line submitted by Brian et al with some additional red lines discussed today and explanatory notes where text is still being worked on by staff (the 2c recommendation for example).

Please take the time to consider the original text, the ‘Brian et al' suggested amendments and the additional staff redlines and provide comments, agreements or disagreements on the list. Also, please raise any other points so we can address them as well.


chris at disspain.uk<mailto:chris at disspain.uk>

+44 7880 642456


On 20 Aug 2021, at 22:33, Berry Cobb via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>> wrote:

Dear EPDP - Specific Curative Rights Protections IGOs,

Please see below the proposed agenda for the meeting scheduled on 23 Aug 2021 15:00 UTC.

  *   Roll Call & SOI Updates (2 minutes)
  *   Welcome & Chair updates (Chair) (10 minutes)

     *   GNSO Council procedural decision [gnso.icann.org]<https://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.com%2Fv3%2F__https%3A%2Fgnso.icann.org%2Fen%2Fcouncil%2Fresolutions%2F2020-current*20210819-2__%3BIw!!PtGJab4!tWQbOrM9QmEVWfhoLK6s-9_KNkDTvCTRfV9C2aq-YB-4rX7W0m7_ZmBGZR4YWgTZrYPkN-E%24&data=04%7C01%7CAlexandra.EXCOFFIER-NOSOV%40oecd.org%7C2c201da671b944269e4208d968bc2f86%7Cac41c7d41f61460db0f4fc925a2b471c%7C0%7C1%7C637655980034804466%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=6aDRXjlfdD7%2Bv5RbpgvUt7YNeXMo5NKX5tVQSovkX3M%3D&reserved=0> to maintain Work Track progress via Expedited Policy Development Process on Specific Curative Rights Protections for Intergovernmental Organizations

  *   Continue Discussion of Working Proposals & Preliminary Conclusions (75 minutes)

     *   Group discussion & confirmation of proposed text on IGO privileges and immunities submitted by Brian, Alexandra & David (see https://mm.icann.org/pipermail/gnso-igo-wt/2021-August/000199.html<https://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fpipermail%2Fgnso-igo-wt%2F2021-August%2F000199.html&data=04%7C01%7CAlexandra.EXCOFFIER-NOSOV%40oecd.org%7C2c201da671b944269e4208d968bc2f86%7Cac41c7d41f61460db0f4fc925a2b471c%7C0%7C1%7C637655980034814425%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=zdrJUAGj2Cx%2BGrd5OU8L%2FdJyba6tveos1qq1iBrhtKM%3D&reserved=0>)
     *   Staff overview & group discussion of Draft Initial Report (see Executive Summary (pp. 2-6); Preliminary Recommendations (pp. 7-11); Proposed Impact Analysis (pp. 11-12): https://mm.icann.org/pipermail/gnso-igo-wt/2021-August/000194.html<https://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fpipermail%2Fgnso-igo-wt%2F2021-August%2F000194.html&data=04%7C01%7CAlexandra.EXCOFFIER-NOSOV%40oecd.org%7C2c201da671b944269e4208d968bc2f86%7Cac41c7d41f61460db0f4fc925a2b471c%7C0%7C1%7C637655980034814425%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=4Drswxw7vT0snVDBcaSe%2FmjI7VQX74Bkym6Tio9HWNs%3D&reserved=0>)

  *   Next steps & closing (3 minutes)

     *   Next meeting 30 August 2021 @ 15:00 UTC


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