[gnso-igo-wt] IGO Work Track discussion points (RE: Kick off email for discuss)
Jay Chapman
jay at digimedia.com
Mon Jul 12 14:51:07 UTC 2021
Good day, everyone.
I appreciate staff’s summary, and add that the first two bullet points are
still far from agreed to or no objection.
Putting aside for the moment the ever-present scope consideration, the
third bullet point is an example (one of several, you’d expect) whose
resolution could impact consensus decisions on the MJ suggestion and others
like the second bullet point.
Look forward to the call.
Jay
On Fri, Jul 9, 2021 at 3:28 PM Mary Wong <mary.wong at icann.org> wrote:
> Hello everyone,
>
>
>
> At our Chair’s request, staff is bringing up this thread to the top of
> your email inboxes in preparation for our upcoming Work Track call on
> Monday. In essence, it seems that the Work Track is generally supportive of
> building in a voluntary arbitration option to support appeals by a losing
> registrant, in a case where an IGO Complainant (as defined by the Work
> Track) has filed and won on its initial complaint.
>
>
>
> To assist with your further deliberations, here are some points that seem
> to either have been agreed (or do not seem to have met with substantive or
> substantial objections) as well as the options under consideration
> regarding what law will apply in an arbitration:
>
> - AGREED or NO OBJECTION: IGO Complainant (as defined by the Work
> Track) will not be required to agree to the Mutual Jurisdiction clause
> under the UDRP when submitting a complaint.
> - AGREED or NO OBJECTION: Both parties will have the ability to agree
> to binding arbitration; the IGO Complainant will have the opportunity to
> indicate its willingness to go to arbitration when filing its complaint
> while the registrant will have the opportunity to agree to arbitration in
> lieu of court proceedings after being informed of the outcome of the
> initial panel decision.
> - UNDER CONSIDERATION: Options as to what will be the applicable law
> should the dispute go to arbitration –
>
>
> 1. Either the law where the relevant registrar is located or the law
> where the registrant is located;
> 2. Either the law where the relevant registrar is located or the
> law where the registrant is located, unless the parties mutually agree to a
> different applicable law;
> 3. The law that the parties mutually agree will apply; if the
> parties do not agree, the arbitration panel will determine the applicable
> law;
> 4. The arbitration panel will determine the applicable law.
>
>
>
> We hope this summary is useful.
>
>
>
> Thanks and cheers
>
> Steve, Berry & Mary
>
>
>
> *From: *"McGrady, Paul D." <PMcGrady at taftlaw.com>
> *Date: *Thursday, July 1, 2021 at 3:11 PM
> *To: *Jeff Neuman <jeff at jjnsolutions.com>, BECKHAM Brian <
> brian.beckham at wipo.int>, Jay Chapman <jay at digimedia.com>
> *Cc: *Arasteh <kavouss.arasteh at gmail.com>, Mary Wong <mary.wong at icann.org>,
> "gnso-igo-wt at icann.org" <gnso-igo-wt at icann.org>
> *Subject: *[Ext] RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> I’m racing to agree on this narrow point. If the registrant picks a
> crummy jurisdiction in which to reside and picks a registrar from a crummy
> jurisdiction too, that is squarely on them. I agree we shouldn’t disturb
> that. (not that Australia is crummy – I think it is one of the
> prettiest).
>
>
>
> *From:* Jeff Neuman <jeff at jjnsolutions.com>
> *Sent:* Thursday, July 1, 2021 2:08 PM
> *To:* BECKHAM Brian <brian.beckham at wipo.int>; Jay Chapman <
> jay at digimedia.com>
> *Cc:* Arasteh <kavouss.arasteh at gmail.com>; Mary Wong <mary.wong at icann.org>;
> McGrady, Paul D. <PMcGrady at taftlaw.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> [EXTERNAL MESSAGE]
>
> Thanks Brian. And this answer will not be a satisfactory one, I know, but
> I believe it is the only answer.
>
>
>
> The answer is that this is not an issue for us to address with respect to
> IGOs. This is an overall problem with the UDRP in general. In other
> words, the issue of the Australian registrar and registrant is an issue not
> just for IGOs but for all Complainants. So, the unsatisfactory answer is
> we do the same with this issue as has been done for 23+ years.
>
>
>
> Same answer applies for the translation issue.
>
>
>
>
>
>
>
> Jeffrey J. Neuman
>
> Founder & CEO
>
> JJN Solutions, LLC
>
> p: +1.202.549.5079
>
> E: jeff at jjnsolutions.com
>
> http://jjnsolutions.com [jjnsolutions.com]
> <https://urldefense.com/v3/__http:/jjnsolutions.com__;!!PtGJab4!riIv471mcXwr2qCc2HseKgwB8IvbXts-2ItqiKL_inWTtgEqXEGN5HDq369HiTHMzhRN3V4$>
>
>
>
>
>
> *From:* BECKHAM Brian <brian.beckham at wipo.int>
> *Sent:* Thursday, July 1, 2021 2:13 PM
> *To:* Jay Chapman <jay at digimedia.com>
> *Cc:* Arasteh <kavouss.arasteh at gmail.com>; Jeff Neuman <
> jeff at jjnsolutions.com>; Mary Wong <mary.wong at icann.org>; McGrady, Paul D.
> <PMcGrady at taftlaw.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Hi Jay,
>
>
>
> Picking up on Jeff’s comment in our last call, how would a case involving
> a jurisdiction with no apparent available cause of action (as was
> suggested: an Australian registrant using an Australian registrar) work
> out?
>
>
>
> (Also what if the registration agreement and UDRP case was in English, but
> the elected foreign court used an unfamiliar language to either or both
> parties?)
>
>
>
> Brian
>
>
>
> *From:* Jay Chapman <jay at digimedia.com>
> *Sent:* Thursday, July 1, 2021 7:40 PM
> *To:* BECKHAM Brian <brian.beckham at wipo.int>
> *Cc:* Arasteh <kavouss.arasteh at gmail.com>; Jeff Neuman <
> jeff at jjnsolutions.com>; Mary Wong <mary.wong at icann.org>; McGrady, Paul D.
> <PMcGrady at taftlaw.com>; gnso-igo-wt at icann.org
> *Subject:* Re: [gnso-igo-wt] Kick off email for discuss
>
>
>
> *(xii) State that the Complainant will submit, with respect to any
> challenges to a decision in the administrative proceeding canceling or
> transferring the domain name, to an arbitration process commences by the
> registrant, that is governed by the Rules of the ___________________
> [INSERT ORGANIZATION], under the laws of either the jurisdiction in which
> the registrant is located or where the registrar is located,unless another
> jurisdiction is mutually agreed to by the parties.**”*
>
>
>
> Typically, choice of law for a post-udrp action is the law of the venue
> where the action was filed, so in furtherance of Jeff’s proposal, the
> registrant should decide specifically whether the law of its location or
> the law of its registrar would be applied.
>
>
>
> Jay
>
>
>
> On The, Jul 1, 2021 at 12:19 PM BECKHAM Brian via gnso-igo-wt <
> gnso-igo-wt at icann.org> wrote:
>
> I would maybe think of it a bit differently.
>
>
>
> Taking your hypo, if you filed a lawsuit on day one to preempt a UDRP
> decision, you would end up somewhere in the loop sketched out here:
> https://mm.icann.org/pipermail/gnso-igo-wt/2021-May/000092.html
>
>
>
> Here, rather than strong arming anyone, what we are trying to do is create
> a global and fair system that avoids that loop (including time, cost,
> uncertainty, appearance in foreign jurisdictions, time, cost, etc.) and
> actually gives the parties certainty that they will have their
> appeal/grievance heard – and moreover on terms that they have a reasonable
> degree of control over.
>
>
>
> *From:* McGrady, Paul D. <PMcGrady at taftlaw.com>
> *Sent:* Thursday, July 1, 2021 7:13 PM
> *To:* BECKHAM Brian <brian.beckham at wipo.int>; Jeff Neuman <
> jeff at jjnsolutions.com>; Mary Wong <mary.wong at icann.org>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> I guess I will just reiterate my “yikes” and see if anyone representing
> registrants and end users might want to say something here.
>
>
>
> PS: I think all this does is force the parties to court early. If I was
> representing a registrant and an IGO filed a UDRP complaint and I knew that
> I was, essentially, going to be strong-armed into arbitration by this
> change in ICANN Rule/Policy, I would file a lawsuit on day one and not wait
> for the UDRP decision. I think we need to actually solve in what courts a
> provider will take a notice of complaint filing to stay the implementation
> of the UDRP decision should a losing respondent choose not to consent to
> binding arbitration.
>
>
>
> *From:* BECKHAM Brian <brian.beckham at wipo.int>
> *Sent:* Thursday, July 1, 2021 12:05 PM
> *To:* Jeff Neuman <jeff at jjnsolutions.com>; McGrady, Paul D. <
> PMcGrady at taftlaw.com>; Mary Wong <mary.wong at icann.org>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> [EXTERNAL MESSAGE]
>
> Correct.
>
>
>
> And it may also be worth recalling the chart shared on the various forks
> in the (here: “other”) court avenue road, of which there are potentially
> many (with all their attendant time and cost implications – and moreover
> uncertainties).
>
>
>
> https://mm.icann.org/pipermail/gnso-igo-wt/2021-May/000092.html
>
>
>
> Brian
>
>
>
> *From:* Jeff Neuman <jeff at jjnsolutions.com>
> *Sent:* Thursday, July 1, 2021 6:58 PM
> *To:* McGrady, Paul D. <PMcGrady at taftlaw.com>; Mary Wong <
> mary.wong at icann.org>; BECKHAM Brian <brian.beckham at wipo.int>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Right, so for this one, I only see one solution which is if you file the
> arbitration it stays the UDRP decision. If you elect to do something else,
> it is at your own risk which is similar to today.
>
>
>
> Today if you file in a mutual jurisdiction, the UDRP decision is stayed.
> If you don’t, you do so at your own risk, right?
>
>
>
> Jeffrey J. Neuman
>
> Founder & CEO
>
> JJN Solutions, LLC
>
> p: +1.202.549.5079
>
> E: jeff at jjnsolutions.com
>
> http://jjnsolutions.com [jjnsolutions.com]
> <https://urldefense.com/v3/__http:/jjnsolutions.com__;!!PtGJab4!riIv471mcXwr2qCc2HseKgwB8IvbXts-2ItqiKL_inWTtgEqXEGN5HDq369HiTHMzhRN3V4$>
>
>
>
>
>
> *From:* McGrady, Paul D. <PMcGrady at taftlaw.com>
> *Sent:* Thursday, July 1, 2021 12:18 PM
> *To:* Jeff Neuman <jeff at jjnsolutions.com>; Mary Wong <mary.wong at icann.org>;
> BECKHAM Brian <brian.beckham at wipo.int>; Arasteh <kavouss.arasteh at gmail.com>;
> gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Thanks Jeff,
>
>
>
> Your intervention solves part of the problem. The part that it does not
> solve is found in 4.K., namely:
>
>
>
> “We will then implement the decision unless we have received from you
> during that ten (10) business day period official documentation (such as a
> copy of a complaint, file-stamped by the clerk of the court) that you have
> commenced a lawsuit against the complainant in a jurisdiction to which the
> complainant has submitted under Paragraph 3(b)(xiii)
> <https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#3bxiii> of
> the Rules of Procedure. (In general, that jurisdiction is either the
> location of our principal office or of your address as shown in our Whois
> database. See Paragraphs 1
> <https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#1mutualjurisdiction>
> and 3(b)(xiii)
> <https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#3bxiii> of
> the Rules of Procedure for details.) If we receive such documentation
> within the ten (10) business day period, we will not implement the
> Administrative Panel's decision, and we will take no further action, until
> we receive (i) evidence satisfactory to us of a resolution between the
> parties; (ii) evidence satisfactory to us that your lawsuit has been
> dismissed or withdrawn; or (iii) a copy of an order from such court
> dismissing your lawsuit or ordering that you do not have the right to
> continue to use your domain name”.
>
>
>
> We still have to solve in what courts a provider will take a notice of
> complaint filing to stay the implementation of the UDRP decision should a
> losing respondent choose not to consent to binding arbitration.
>
>
>
> Best,
>
> Paul
>
>
>
> *From:* Jeff Neuman <jeff at jjnsolutions.com>
> *Sent:* Thursday, July 1, 2021 11:07 AM
> *To:* Mary Wong <mary.wong at icann.org>; McGrady, Paul D. <
> PMcGrady at taftlaw.com>; BECKHAM Brian <brian.beckham at wipo.int>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> [EXTERNAL MESSAGE]
>
> All,
>
>
>
> On the call, our Chair brought up that I had thrown out a proposal on how
> to potentially handle this issue. Because our chair pointed to this, I
> thought it would be good to provide some of my thinking behind the
> proposal. I am doing this in my personal capacity and not in any other
> capacity. If you believe that me submitting this proposal is not in line
> with my role, I am ok with that as well. I am again just doing this
> because my name was mentioned on the last call and at the end of the day,
> would like see this group succeed.
>
>
>
> I think when answering this question, we need to take one step back and
> view the entire proposal as a package. In other words, we have to look at
> the arbitration process in light of the overall mission of the group.
>
>
>
> 1. The primary reason we are devising this arbitration process is
> because we are talking about eliminating Section 3(b)(xii) of the Rules for
> IGOs which requires that a Complainant “(xii) State that Complainant
> will submit, with respect to any challenges to a decision in the
> administrative proceeding canceling or transferring the domain name, to the
> jurisdiction of the courts in at least one specified Mutual Jurisdiction”
>
>
>
> 1. Today, if an IGO Complainant were to file a UDRP, it would have to
> agree to submit to jurisdiction of either the Courts in the district where
> the Registrar or the Registrant is located. The fear is that this could be
> interpreted by a Court as waiving its jurisdictional immunity. And as we
> have acknowledged, this fear well founded. In fact, I attach a US Case in
> the district of Florida where not an IGO, but a State governmental
> institution, was found to have waived certain immunity claims by filing a
> UDRP and agreeing to submit to the jurisdiction of the Registrar.
>
>
>
> 1. So, by asking to remove this language for IGOs, we are effectively
> taking away the argument by any losing registrant (in the US) from arguing
> that the IGOs have waived their immunities and can be subject to suit in
> the US. This is a huge ask of registrants. Therefore, this group needs to
> (in my personal opinion) go out of its way to make sure that Registrants do
> have effective redress to make up for what we are asking.
>
>
>
> 1. The resolution by the GNSO that forms our task wanted us not only
> to account for addressing the immunity, but also to ensure that any policy
> “does not affect the right and ability of registrants to file judicial
> proceedings in a court of competent jurisdiction and preserves registrants’
> rights to judicial review of an initial UDRP or URS decision.”
>
>
>
> 1. If is for these reasons that I initially proposed changing Section
> 3(b)(xii) of the Rules for IGOs to “(xii) State that Complainant will
> submit, with respect to any challenges to a decision in the administrative
> proceeding canceling or transferring the domain name, to an arbitration
> process commenced by the registrant, that is governed by the Rules of the
> ___________________ [INSERT ORGANIZATION], under the laws of either the
> jurisdiction in which the registrant is located or where registrar is
> located.”
>
>
>
> I know that Choice of Law and Choice of Jurisdiction are two different
> things. But often times the choice of jurisdiction is based on one’s views
> of their choice of law. And it correct that just because a Complainant
> agrees to submit to a choice of jurisdiction in an UDRP, that does not mean
> the Registrant has to file there. BUT, a registrant who files a case
> elsewhere does so at their own risk. Why? Because (a) where they choose
> (if not the one picked by a Complainant) may not actually have jurisdiction
> over the Registrant, and (b) under the UDRP Policy, a Registrar is only
> required to stop the transfer or cancellation of the domain name IF the
> case is filed where the Complainant agrees.
>
>
>
> Thus, to recognize this fact, I now amend my proposal to:
>
>
>
> *(xii) State that the Complainant will submit, with respect to any
> challenges to a decision in the administrative proceeding canceling or
> transferring the domain name, to an arbitration process commences by the
> registrant, that is governed by the Rules of the ___________________
> [INSERT ORGANIZATION], under the laws of either the jurisdiction in which
> the registrant is located or where the registrar is located, unless another
> jurisdiction is mutually agreed to by the parties.**”*
>
>
>
> I am providing this in my personal capacity in the hopes to move this
> conversation along in a positive direction. Feel free to accept or not.
>
>
>
> Sincerely,
>
>
> Jeff Neuman (in my personal capacity)
>
>
>
>
>
> Jeffrey J. Neuman
>
> Founder & CEO
>
> JJN Solutions, LLC
>
> p: +1.202.549.5079
>
> E: jeff at jjnsolutions.com
>
> http://jjnsolutions.com [jjnsolutions.com]
> <https://urldefense.com/v3/__http:/jjnsolutions.com__;!!PtGJab4!riIv471mcXwr2qCc2HseKgwB8IvbXts-2ItqiKL_inWTtgEqXEGN5HDq369HiTHMzhRN3V4$>
>
>
>
>
>
> *From:* gnso-igo-wt <gnso-igo-wt-bounces at icann.org> *On Behalf Of *Mary
> Wong via gnso-igo-wt
> *Sent:* Thursday, July 1, 2021 11:31 AM
> *To:* McGrady, Paul D. <PMcGrady at taftlaw.com>; BECKHAM Brian <
> brian.beckham at wipo.int>; Arasteh <kavouss.arasteh at gmail.com>;
> gnso-igo-wt at icann.org
> *Subject:* Re: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Hello everyone, to follow up on this discussion (with thanks to Paul,
> Brian and Kavouss), the current option of post-UDRP arbitration
> contemplates that:
>
> Step 1: The *IGO Complainant* elects arbitration as its preferred option *
> at the time it files the complaint* with the UDRP provider; and
>
> Step 2: The *losing respondent* is only required to make its choice to
> arbitrate (or not) *after the initial UDRP panel decision and within X
> days following notification* by the provider.
>
>
>
> As such, staff suggests that it may be helpful for Work Track members to
> also consider a few process implications around the question of
> applicable/governing law (i.e. choice of law) for the arbitration, as
> summarized by Paul:
>
>
>
> 1. *The parties deciding at the time of agreeing to arbitration*
>
>
> - How will this work in view of the current process as described above
> – e.g. will the IGO propose what it believes should be the governing law at
> the time it files its complaint, to be communicated by the UDRP provider
> when notifying the losing respondent, and if the respondent decides NOT to
> accept the IGO’s suggestion, the parties will then attempt to negotiate in
> good faith?
> - If so, should there be a maximum timeframe for that negotiation and
> outcome (which may be no agreement)? (Note: the actual number of days
> within that timeframe can be determined during implementation)
> - If the outcome is that there is no agreement on the law applicable
> to the dispute, should the next step be Option 3 (below) or will this mean
> no arbitration at all?
>
>
>
> 1. *The arbitrator making the decision in all cases*
>
>
> - This will simplify the process and likely be speedier, but (as was
> noted during the Work Track call this past Monday) may not be as helpful an
> incentive to arbitrate.
> - The arbitrator is not limited to determining whether the applicable
> law is either that of the registrant’s or registrar’s location; while an
> unlikely outcome, it may end up being a law that neither the IGO
> Complainant nor the respondent would have agreed to (Note: while not
> necessarily the case, we assume that Option 1 (above) will likely revolve
> around either the registrar’s or registrant’s location or a third
> alternative preferred by the IGO.)
>
>
>
> 1. *The arbitrator making the decision in cases where the parties
> agree to arbitration but cannot agree on a Choice of Law*
>
>
> - This will likely lengthen the time required to complete the
> arbitration.
> - As with Option 2 (above), the arbitrator may determine that the
> applicable law is one that neither the IGO nor the respondent may have
> wanted.
>
>
>
> We hope these notes and questions are useful.
>
>
>
> Thanks and cheers
>
> Steve, Berry & Mary
>
>
>
> *From: *gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of
> "McGrady, Paul D. via gnso-igo-wt" <gnso-igo-wt at icann.org>
> *Reply-To: *"McGrady, Paul D." <PMcGrady at taftlaw.com>
> *Date: *Thursday, July 1, 2021 at 10:40 AM
> *To: *BECKHAM Brian <brian.beckham at wipo.int>, Arasteh <
> kavouss.arasteh at gmail.com>, "gnso-igo-wt at icann.org" <gnso-igo-wt at icann.org
> >
> *Subject: *Re: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Thanks Brian. I agree that is where we were heading, but are we still
> heading there if the IGO can’t have input on the Choice of Law? If so,
> great. We can just leave it to the losing respondent to choose the Choice
> of Law for the arbitration proceedings.
>
>
>
> Also, I think better to play this out on this list than for you and I to
> try to schedule a call (not only due to the US holiday bearing down on us)
> but also so that the WT can follow along and give their own inputs. Like
> my 7th grade math teacher, Mrs. Rutter, used to tell me – jumping to the
> right answer “without showing your work” isn’t OK. J
>
>
>
> Best,
>
> Paul
>
>
>
>
>
> *From:* BECKHAM Brian <brian.beckham at wipo.int>
> *Sent:* Thursday, July 1, 2021 9:32 AM
> *To:* McGrady, Paul D. <PMcGrady at taftlaw.com>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> [EXTERNAL MESSAGE]
>
> Hi Paul, and sorry for all the questions (and maybe we can have a call if
> that would be easier) but I thought we were working under the assumption
> that the IGO would have consented from the outset when filing the UDRP
> case, and that a losing registrant’s filing of the request to arbitrate
> would stand in for the court stay provision now available under 4(k).
>
>
>
> I would also point out that IGOs have been seeking to use the accepted
> arbitration model all along – which even registrars such as GoDaddy use
> [godaddy.com]
> <https://urldefense.com/v3/__https:/www.godaddy.com/legal/agreements/universal-terms-of-service-agreement__;!!PtGJab4!rxO_S7CQI44RM_cA4boCwnBHyAcg_Uyy8-aAsR6mBsYFMAlNxIva-8AAmNJPCqBks7cZFiw$>.
>
>
>
>
>
>
> Brian
>
>
>
> --
>
>
>
> Going back to the original question, here are a few citations on the
> choice of law question:
>
>
>
> UNCITRAL Notes on Organizing Arbitral Proceedings:
>
> https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/arb-notes-2016-e.pdf
> [uncitral.un.org]
> <https://urldefense.com/v3/__https:/uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/arb-notes-2016-e.pdf__;!!PtGJab4!rxO_S7CQI44RM_cA4boCwnBHyAcg_Uyy8-aAsR6mBsYFMAlNxIva-8AAmNJPCqBkHou6Zzs$>
>
>
>
> The parties may agree on the place (or “seat”) of arbitration.
> If the place of arbitration has not been agreed by the parties,
> typically the arbitral tribunal or the arbitral institution
> administering the arbitration will have to determine the place
> of arbitration at the outset of the arbitral proceedings.
> Arbitration rules of some institutions contain a default place
> of arbitration, applicable where the parties have not chosen one.
>
>
>
> ICC: https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/#article_21
> [iccwbo.org]
> <https://urldefense.com/v3/__https:/iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/*article_21__;Iw!!PtGJab4!rxO_S7CQI44RM_cA4boCwnBHyAcg_Uyy8-aAsR6mBsYFMAlNxIva-8AAmNJPCqBkmW9Tz1M$>
>
>
>
> The parties shall be free to agree upon the rules of law to be applied by
> the arbitral tribunal to the merits of the dispute. In the absence of any
> such agreement, the arbitral tribunal shall apply the rules of law which it
> determines to be appropriate.
>
>
>
> WIPO: https://www.wipo.int/amc/en/arbitration/rules/index.html#awa2
> [wipo.int]
> <https://urldefense.com/v3/__https:/www.wipo.int/amc/en/arbitration/rules/index.html*awa2__;Iw!!PtGJab4!rxO_S7CQI44RM_cA4boCwnBHyAcg_Uyy8-aAsR6mBsYFMAlNxIva-8AAmNJPCqBkvy2WdaU$>
>
>
>
> The Tribunal shall decide the substance of the dispute in accordance with
> the law or rules of law chosen by the parties. Any designation of the law
> of a given State shall be construed, unless otherwise expressed, as
> directly referring to the substantive law of that State and not to its
> conflict of laws rules. Failing a choice by the parties, the Tribunal shall
> apply the law or rules of law that it determines to be appropriate.
>
>
>
>
>
>
>
> *From:* McGrady, Paul D. <PMcGrady at taftlaw.com>
> *Sent:* Thursday, July 1, 2021 3:40 PM
> *To:* BECKHAM Brian <brian.beckham at wipo.int>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Thanks Brian. That is a good question. I suppose we have to parse out
> the difference between not requiring an IGO to consent to a court
> jurisdiction vs. what jurisdictions the losing respondent could file in
> that would work the same automatic stay of the UDRP proceedings that
> respondents now enjoy. Otherwise, what possible reason would an IGO have
> to agree to arbitration?
>
>
>
> *From:* BECKHAM Brian <brian.beckham at wipo.int>
> *Sent:* Thursday, July 1, 2021 8:27 AM
> *To:* McGrady, Paul D. <PMcGrady at taftlaw.com>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> [EXTERNAL MESSAGE]
>
> Thanks – helpful indeed.
>
>
>
> So, if you will indulge one more question, if (whether due to failure to
> agree on choice of law or otherwise) there is no agreement to arbitrate,
> would the idea be that the UDRP decision kicks in?
>
>
>
> Brian
>
>
>
> *From:* McGrady, Paul D. <PMcGrady at taftlaw.com>
> *Sent:* Thursday, July 1, 2021 3:24 PM
> *To:* BECKHAM Brian <brian.beckham at wipo.int>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Thanks Brian. The choice whether or not to arbitrate would be based on
> the process we decide, rather than being decided within the process. Once
> a party commits to arbitration, they will be bound to do so. The question
> is which of these (so far) 3 options is more like to induce a party to
> agree to arbitration in the first place. For me, #1 would be the most
> attractive since going in blind on the Choice of Law issue would not be my
> favorite thing. Hope that helps.
>
>
>
> Best,
>
> Paul
>
>
>
>
>
>
>
> *From:* BECKHAM Brian <brian.beckham at wipo.int>
> *Sent:* Thursday, July 1, 2021 8:16 AM
> *To:* McGrady, Paul D. <PMcGrady at taftlaw.com>; Arasteh <
> kavouss.arasteh at gmail.com>; gnso-igo-wt at icann.org
> *Subject:* RE: [gnso-igo-wt] Kick off email for discuss
>
>
>
> [EXTERNAL MESSAGE]
>
> Thanks Paul for setting this out.
>
>
>
> As we had discussed the idea of a fallback provision on our last call, I
> had understood option 3 as being applied in something of a bifurcated
> fashion, e.g., step 1 agree to arbitrate, step 2 try to agree on choice of
> law, but if the parties are unable to agree the arbitrator(s) decide?
>
>
>
> Can you help me understand a bit better how that would work with the idea
> that a party could decide not to engage in arbitration if they did not get
> their choice of law?
>
>
>
> Brian
>
>
>
> *From:* gnso-igo-wt <gnso-igo-wt-bounces at icann.org> *On Behalf Of *McGrady,
> Paul D. via gnso-igo-wt
> *Sent:* Thursday, July 1, 2021 2:41 PM
> *To:* Arasteh <kavouss.arasteh at gmail.com>
> *Cc:* gnso-igo-wt at icann.org
> *Subject:* Re: [gnso-igo-wt] Kick off email for discuss
>
>
>
> Thanks Kavouss.
>
>
>
> All, it appears we now have three options regarding Choice of Law:
>
>
>
> 1. The parties deciding at the time of agreeing to arbitration;
>
> 2. The arbitrator making the decision in all cases; or
>
> 3. The arbitrator making the decision in cases where the parties agree to
> arbitration but cannot agree on a Choice of Law.
>
>
>
> I can live with any of these three, since ultimately a party can decide
> not to engage in arbitration of they do not have control over the Choice of
> Law. If we wish to promote the use of binding arbitration, it seems to me
> that 1 is the most likely to do so, followed by 3 and then lastly 2.
>
>
>
> Best,
>
> Paul
>
>
>
>
>
> *From:* Arasteh <kavouss.arasteh at gmail.com>
> *Sent:* Tuesday, June 29, 2021 2:26 AM
> *To:* McGrady, Paul D. <PMcGrady at taftlaw.com>
> *Cc:* gnso-igo-wt at icann.org
> *Subject:* Re: [gnso-igo-wt] Kick off email for discuss
>
>
>
> [EXTERNAL MESSAGE]
>
> Dear Paul
>
> Tks
>
> But these are not two independent options but two stepwise options
>
> In other words , if the parties do not agree on the choice of law then
> the arbiter acts as in option 2
>
> Regards
>
> Kavouss
>
>
>
>
>
>
>
> Envoyé de mon iPhone
>
>
>
> Le 28 juin 2021 à 18:19, McGrady, Paul D. via gnso-igo-wt <
> gnso-igo-wt at icann.org> a écrit :
>
> Regarding Choice of Law, I can live with either:
>
>
>
> 1. The parties deciding at the time of agreeing to arbitration; or
>
> 2. The arbitrator making the decision (which will affect whether or not
> the parties ultimately agree to the arbitration).
>
>
>
> Discuss!
>
>
>
> Best,
>
> Paul
>
>
>
>
>
>
>
> *Taft *
> */ *
> *Paul* *D. McGrady* / Partner
> Taft Stettinius & Hollister LLP
> 111 E. Wacker Drive, Suite 2800 [google.com]
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> Chicago, Illinois 60601-3713 [google.com]
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> Tel: 312.527.4000 • Fax: 312.754.2354
> Direct: 312.836.4094 • Cell: 312.882.5020
> *www.taftlaw.com
> <https://urldefense.com/v3/__http:/www.taftlaw.com__;!!Hj9Y_P0nvg!FNKvIEyshxhz3HHt072eH_iNwf79nKyqakxZB8jZqCzWoJXy0UjuwXRsWIr4nb8vSQvjbbMwoQ$> *
> / PMcGrady at taftlaw.com
>
>
>
>
>
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>
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