[gnso-igo-wt] Just a simple way of looking at arbitration

Kris Seeburn seeburn.k at gmail.com
Tue Feb 23 13:19:38 UTC 2021


Sorry all,

I wanted to add something which just slipped my mind. But , just to state it, Vanda is way right we can easily circumvent where ICANN stops, but we can add one word to the process without a fight “ DUE DILIGENCE “ it’s a heavy word for lawmakers. So in essence whilst something is litigious, it is required of ICANN to ensure proper “due diligence” is carried out, which keeps the process same but with a little more burden.

Then as Vanda said we work out a Marry has brought up the key reference documents, we can tailor it to work under #5 that opens up the arbitration process for IGOs without anyone seeing it as a situation or a problem to look at. Am sure a blend of the WIPO  rules on domain names and the UNCITRAL, worked out together in a harmonious way the cover under the UN and The Hague international to transnational law would just kick in. 

That resides easily of making sure that the onus of Due Diligence is also an ICANN issue to ensure they don’t wander in the wrong way as I mention “due diligence” which I think GNSO cannot really say no to adding and integrating it in one of the  4 points. Then we integrate 5 as the arbitration way. Tailored properly I don’t see an issue but we just need to agree on the taxing words in #5 , there is a loop in the way it’s written but if reworded creatively and in legal way. There can be no way out since most if not nearly all IGOs go by the same arbitration rules so no need to create a new one, just look at how it fits our needs with the use of the WIPO document on domain names. And it should really work. At least I am hopeful.

Just for clarity again it’s my personal stand but I am going to do my best for our house to be fully informed and see the proper reasoning and sense if the group finds an agreement to move forward in such direction. I do not need to explain to any IGOs your benefits at length but if needs to I can. By being a Hague alumni myself put you through the process. Two decades of practicability has its benefits, I know the loopholes but it does give IGOs a way forward to a solution. 

Now from my NCSG hat I do not see it as a problem per say if we can protect the good from the bad it certainly ensures that our constituents will see a good protection as well. We also have at heart the stability and security of the population that uses the internet and that also encompasses the NPO or NGO with the same agenda of ensuring that we can always have a way out not a deadlock.

Mary if you could forward the documents you mention we can certainly work out a beneficial solution.

I’ve com across some if not most of you. I am sure the will and courage to define what is right rests with all of us.Chris Dispain has already voiced it and I join him in that as well. Am sure with the will of everyone we can close this with an acceptable way. If we just agree to see and adopt a position we can all accept here.

Best,
Kris 

> On 23 Feb 2021, at 11:16, Kris Seeburn <seeburn.k at gmail.com> wrote:
> 
> Thanks and I think we can readily integrate bits from all and work out the workings. We do not necessarily need to change things as it stands else we will be here for years again. Let’s facilitate the #5 issue in a context and wording that does not hamper any process ICANN has laid out at this point ... since it would entail a long process to review the UDRP process but diverge this point to ensure the leeway to a solution that could satisfy the needs of the many which outweighs the need of one. 
> 
> It may not be the ultimate solution but it seems after first discussion that the way forward is a solution and wording of #5 that gives the opportunity to not overhaul the process currently in place. 
> 
> The matter at hand is not to make it longer but short and viable.
> 
> So any documentation that you have that we can use would surely make it easier to write a procedural way forward.
> 
> Pending the agreement of those in the WTT. Thanks again.
> 
> 
> 
> Kris Seeburn
> Email:Seeburn.k at gmail.com
> LinkedIn: LinkedIn.com/in/kseeburn
> Twitter:Twitter.com/Seeburnk 
> 
>>> On Feb 22, 2021, at 18:56, Mary Wong via gnso-igo-wt <gnso-igo-wt at icann.org> wrote:
>>> 
>> 
>> Hello everyone, thank you for kicking off our mailing list discussions! If we may, here is some additional background to the Work Track that may be useful as you begin your deliberations.
>>  
>> As Brian mentions, previous discussions had included consideration of the possibility of an arbitral-type model. Most recently in the ICANN context, this includes the Policy Development Process Working Group that developed the five Curative Rights recommendations, of which Recommendation #5 was the one referred to this Work Track by the GNSO Council. In its Initial Report, the Working Group had requested public comments on two options for handling the question of IGO jurisdictional immunity: (1) what ultimately became Recommendation #5; or (2) allow for appeals from a panel decision under the existing ICANN dispute resolution processes to be decided through arbitration. ICANN staff had also noted a number of materials for the Working Group to inform its discussions over an arbitral appeal mechanism, including: (1) the UNCITRAL Rules mentioned by Kris in his previous note; (2) the deliberations of the WIPO General Assembly in 2002 (subsequent to the WIPO-2 Domain Name Process mentioned on our call earlier today); and (3) a 2003 WIPO Secretariat paper discussing the possible contours of a de novo appeal mechanism (although this study was undertaken in the context of country names rather than IGO identifiers). Should the Work Track decide to proceed to discuss some form of arbitral appeal option, we will be happy to provide summaries of the previous work that is relevant to this topic – both within ICANN and externally - and links to full copies of the materials.
>>  
>> In this regard, we note that the GNSO Council had expressly included the external expert memo (by Professor Edward Swaine of the George Washington University law school) and the IGO Small Group Proposal (mentioned by Brian) in the chartering document as relevant documentation for this Work Track to review.
>>  
>> Prior discussions in various forums inside and outside ICANN, echoed by various participants on our call today, confirm that the basic challenges IGOs face in using the existing ICANN dispute resolution processes are the requirements to have trademark rights for standing to file a complaint and to submit to the jurisdiction in a Mutual Jurisdiction (as defined in the applicable Rules). These prior discussions also show that there are longstanding differences of opinion about whether the more appropriate policy solution is to amend the existing processes or develop a separate one for disputes involving IGOs. Where an arbitral mechanism is concerned, a few factors this Work Track may wish to consider could include when and how an agreement to go to arbitration is obtained, whether an appeal via arbitration is mandatory or voluntary, and (if the solution involves the current ICANN processes) any effects on the existing Mutual Jurisdiction requirement.
>>  
>> We hope the above information is helpful as the Work Track begins to consider possible options and creative solutions.
>>  
>> Cheers
>> Steve and Mary
>>  
>> From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of Vanda Scartezini via gnso-igo-wt <gnso-igo-wt at icann.org>
>> Reply-To: Vanda Scartezini <vanda at scartezini.org>
>> Date: Monday, February 22, 2021 at 3:10 PM
>> To: BECKHAM Brian <brian.beckham at wipo.int>, "gnso-igo-wt at icann.org" <gnso-igo-wt at icann.org>
>> Subject: Re: [gnso-igo-wt] Just a simple way of looking at arbitration
>>  
>> Totally agree Brian.  What is relevant is the opportunity to allow registrant to fight for their name  which could be their own name, or a trade mark in their country. So after the URDP finalize its decision, to make room for another instance, such instance , IMO, should be an independent arbitration on the registrant country to allow a defense on their own language and reduced cost.
>> Just to detail the idea behind
>>  
>> Vanda Scartezini
>> Polo Consultores Associados
>> Av. Paulista 1159, cj 1004
>> 01311-200- Sao Paulo, SP, Brazil
>> Land Line: +55 11 3266.6253
>> Mobile: + 55 11 98181.1464 
>> Sorry for any typos. 
>>  
>>  
>>  
>>  
>>  
>> From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of BECKHAM Brian via gnso-igo-wt <gnso-igo-wt at icann.org>
>> Reply-To: BECKHAM Brian <brian.beckham at wipo.int>
>> Date: Monday, February 22, 2021 at 16:53
>> To: "gnso-igo-wt at icann.org" <gnso-igo-wt at icann.org>
>> Subject: Re: [gnso-igo-wt] Just a simple way of looking at arbitration
>>  
>> Thanks Kris for this useful background,
>>  
>> Part of our charge is to seek to remain “generally consistent” with prior work, which includes looking at the UDRP – which borrows heavily from arbitration principles and for which there is 20 years of experience – as a model.  This also helps us to avoid re-inventing the wheel, so to speak.
>>  
>> Interestingly, prior discussions did explore the concept of an arbitral-type appeal.  That concept served the dual goals of giving registrants an avenue to appeal a decision they disagreed with, and at the same time avoided IGOs jeopardizing internationally recognized privileges and immunities.  If you agree, there may be good utility in exploring this again.
>>  
>> It is also worth bearing in mind here that in terms of the likelihood of any such appeals avenue being invoked (and indeed cases at first instance), work produced by the “Small Group” referenced in our briefing materials suggested the scope of a curative IGO-based RPM should address claims of abusive domain name registrations “where the registrant is pretending to be the IGO or that are otherwise likely to result in fraud or deception.”  
>>  
>> Brian
>>  
>> Brian Beckham | Head, Internet Dispute Resolution Section | WIPO Arbitration and Mediation Center
>> 34 chemin des Colombettes, 1211 Geneva 20, Switzerland | T +4122 338 8247 | E brian.beckham at wipo.int | www.wipo.int [wipo.int]
>>  
>> From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> On Behalf Of Kris Seeburn via gnso-igo-wt
>> Sent: Monday, February 22, 2021 8:01 PM
>> To: gnso-igo-wt at icann.org
>> Subject: [gnso-igo-wt] Just a simple way of looking at arbitration
>>  
>> To my fellow friends and colleagues I wanted to bring to all of you the simple arbitration rules The Hague practices...
>>  
>> International arbitration has long been the most successful method for settling all kinds of international commercial disputes, and still is – notwithstanding the surrounding criticism – the leading method for settling disputes between foreign investors and the host state. One of the characteristics of international arbitration is that it to a large extent relies on an international or transnational legal framework. 
>>  
>> The effects of arbitration agreements and of arbitral awards, as well as the role of the courts regarding arbitration agreements and awards, are regulated in international conventions such as the New York or the ICSID Conventions. Furthermore, although there is room for specificities of national law, commercial arbitration acts are largely harmonised especially through the impact of the UNCITRAL Model Law. 
>>  
>> Similarly, even if arbitral institutions try to distinguish one from each other by providing for some specific tools, the essential content of arbitration rules does not vary. It can be said, consequently, that the transnational framework of arbitration is intended to create to the extent possible an autonomous system of dispute resolution, which can be applied in a uniform way irrespective of the country in which the proceedings take place or the award is sought enforced. The procedural autonomy of arbitration may also have an impact on how arbitral tribunals relate to the substance of the dispute.
>>  
>> As arbitral awards are final and binding, and domestic courts and ICSID annulment committees do not have the power to review them in the merits, arbitral tribunals enjoy a considerable flexibility in selecting and applying the rules of law applicable to the dispute, even though they are constrained to respect the will of the parties. Legal literature has strongly emphasized that this flexibility creates an expectation of delocalization: both from the procedural and from the substantive point of view, arbitration is described as a method for settling disputes that strives for uniformity on a transnational level and should not be subject to national laws. The autonomy and flexibility of arbitration, however, are not absolute. 
>>  
>> The international instruments that regulate arbitration either make, in some contexts, reference to national law or call for the application of (general or concrete) international law. Also, they do not cover all aspects of arbitration, thus leaving room for national regulation. Additionally, the restricted role that courts and ICSID ad hoc committees have in arbitration does not completely exclude that national law may have an impact. While court and committee control is not a review in the merits, application of the parameters for validity or enforceability of an award, even where these parameters are harmonised, may depend on national regulation.
>>  
>> Importantly, the definition of what disputes are arbitrable is left to national law. While the scope of arbitrability has been significantly expanded starting from the last two decades of the last century, there are signs now that it may be restricting. The scope of arbitrability may be looked upon as a measure of the trust that the legal system has in arbitration. From another perspective, it may represent the way in which States approach the settlement of international commercial disputes: intending to keep an exclusive power by means of the exclusion of private deciders, or adopting the role of controllers of the regularity of arbitration. As far as investment arbitration is specifically concerned, it is well known that States’ attitudes are diverse and may change from time to time. In both cases, States’ policy choices may have an impact on applicable law issues.
>>  
>> All the foregoing considerations, succinctly exposed, are the frame for the present topic. On such a basis, it is possible to develop two lists of issues to be individually addressed. The first list deals with the fundamental aspects of the topic. Among the issues included therein, some refer to all types of arbitration, while others are rather specific to either commercial or investment arbitration. The second list responds to the fact that the applicable law is not necessarily unitary. Indeed, according to the principle of severability, a different law may apply to the procedural aspects and to the substantive aspects of the dispute, and within these two categories there are further possibilities for severing the applicable law. Thus, one can wonder to which issues is it appropriate to apply international sources of law, to which issues is it appropriate to apply soft sources of law, to which is it appropriate to apply national sources of law, and to which issues is it appropriate to apply (or to create) transnational standards. 
>>  
>> Or a combination of these sources? On which basis may this selection be made, and what are its effects on the autonomy of arbitration, on the expectations of the parties and on the credibility and legitimacy of arbitration as an out-of-court judicial system that enjoys enforceability?
>>  
>> I suggest you have a first read on simple way forward for arbitration. We could amend rework and put in place our satisfied way forward. We take point 5 and turn it into a satisfactory curative arbitration track. I’ll await some of your thoughts.
>>  
>> Kris
>>  
>>  
>> 
>> 
>> 
>> 
>> On 22 Feb 2021, at 22:26, Terri Agnew via gnso-igo-wt <gnso-igo-wt at icann.org> wrote:
>> 
>> Dear all,
>>  
>> All recordings for the IGO Work Track Team Meeting call held on Monday, 22 February 2021 at 16:00 UTC can be found on the agenda wiki page (attendance included) and the GNSO Master Calendar [gnso.icann.org]. 
>>  
>> These include:
>> ·         Attendance (please let me know if your name has been left off the attendance list)
>> ·         Audio recording
>> ·         Zoom chat archive
>> ·         Zoom recording (including audio, visual, rough transcript)
>> ·         Transcript
>>  
>> As a reminder only members can join the call, observers can listen to the recordings and read the transcript afterwards. Please email gnso-secs at icann.org if you would like to change your status from observer to member. 
>>   
>> For additional information, you may consult the mailing list archives and the main wiki page.
>>  
>> Thank you.
>> Kind regards
>>  
>> Terri
>>  
>>  
>>  
>>  
>>  
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>>  
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