[gnso-igo-wt] FOR DISCUSSION: Updated draft preliminary recommendations and options

[Alexandra.EXCOFFIER-NOSOV at oecd.org]

Dear Mary,

This looks quite good.  See some comments below, mainly technical ones from our arbitration expert.  OK also with Chris’ changes.

I have not had time to review the full report yet.

Regards,
Alexandra



1)    Rec 3 -- suggest that “In relation to the UDRP/URS” be bolded and underline to show this is the same text for each para for the respective RPM (stylistic suggestion)

2)    Rec 4.ii -- suggest “it agrees” instead of “they agree”

3)    Rec 4.ii -- suggest moving the entire “The request shall include information regarding the applicable arbitral rules…” sentence to a footnote as we really want public comment on the main thrust of the recommendation.

4)    Rec 4.iii -- suggest “agreed to arbitration” should be “filed a request for/notice of arbitration” (or equivalent) to match the text of Rec 4.iv

5)    Rec 4.iv -- suggest to delete “If the UDRP provider receives notice that an arbitration proceeding has been initiated, it shall promptly inform both parties and the relevant registrar.” Because Rec 4.iii (and the UDRP) directs the applicable notice to the registrar, not the UDRP provider

6)    Rec 4.v and vi -- suggest adding something like “In lieu of mutual agreement to arbitration as described in 4,I and 4.ii, where the registrant instead initiates…” for clarity

7)    Rec 4.v.option 1 -- is “jurisdiction over” the right terminology?  Could be discussed as lack of jurisdiction is a broader concept than lack of jurisdiction due to immunities.  A priori, ok with both

8)    Rec 4.v option 2 -- footnote 9 should appear at iii or iv

9)    Rec 4.v option 2 -- should add notice to the UDRP provider (see note 5 above)

10)  Rec 4.vi -- suggest deleting brackets and replace “and” with “or” or with “and/or”

11)  Rec 6.ii -- should add e.g. -- “does not e.g., have a satisfactory cause of action”

12)  Rec 6.iii.d -- should add “in the discretion of the arbitral panel” (to match the UDRP)

13)  Rec 6.iii.d -- as agreed on our last call, the second sentence should be in brackets as an option

In addition, the new footnote 8 does not match the recommendations, since it provides that the registrant can ask for arbitration at any time during the judicial process, while the recommendation only allows this at the conclusion of the process.  Personally, my preference would be for the footnote, but that means that the recommendations should be modified.  Also the footnote should indicate the options in their order (1, then 2).

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> On Behalf Of Mary Wong via gnso-igo-wt
Sent: 09 September, 2021 9:47 PM
To: gnso-igo-wt at icann.org
Subject: [gnso-igo-wt] FOR DISCUSSION: Updated draft preliminary recommendations and options

Dear all,

Please find attached a clean, updated version of the draft preliminary recommendations that this group is attempting to finalize for Public Comment next week, as well as the URS process flow chart that was displayed during Tuesday’s call. We hope the revised text captures the agreements and feedback from this past Tuesday’s call. As previously, to avoid “competing” texts, please do not send a redline/markup of the document; instead, please feel free to post comments and questions to this list ahead of Monday’s call.

As you review the updated text, staff hopes that the following notes are helpful:

  *   We have combined the Mutual Jurisdiction exemption for the UDRP and URS into a single recommendation (which is now Recommendation #3).
  *   We have attempted to highlight the options under consideration even more by labeling them Option 1 and Option 2 (for the UDRP and URS, in what is now Recommendation #4 & #5, respectively.) We have also used yellow highlights in these square-bracketed options to indicate the differences between the two options in question.
  *   All other changes, updates and additions have been indicated via Comments balloons.
  *   We have clarified that the question regarding applicable law is not an option to mutual agreement but a possible additional step (in what is now Recommendation #6.)

For the URS process flow chart, we plan on making any necessary updates once the EPDP team has agreed on the text of the recommendations, prior to insertion into the Initial Report.

Staff is currently updating the draft Initial Report to reflect the latest changes and agreements. We will do our best to circulate an updated version as soon as feasible, prior to Monday’s call.

Thanks and cheers
Steve, Berry & Mary
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