[gnso-igo-wt] FOR REVIEW: Updated Draft Initial Report (Re: FOR DISCUSSION: Updated draft preliminary recommendations and options)

Tue Sep 14 12:54:00 UTC 2021

Good morning, Chris and everyone.

I do object to some of Alexandra's suggested edits in that particular
sentence:

First, the suggested changes to the back half of this sentence water down
the point that was put forth and that staff had accurately tried to state.
To focus and be even more clear on the position, it should read as follows:

“…while other members thought that retaining the registrant’s ability to
choose to go to court as an initial option was important to comply with the
GNSO Council’s instructions (that the registrant obtain judicial review)
and ensure fairness (that there would be a decision on the merits).”

Second, the highlighting of the chart reaffirms its confusing and one-sided
nature. Seeking neutrality in this report, why does the chart not indicate,
for example, that an IGO might lose at a particular point and not take
things any further?  Another example:  the chart makes clear that there
are several ways for an IGO to prevail, but only one direct way a
registrant could prevail - if the IGO waives its immunity, which is not
right or accurate (and the other, seemingly indirect way for a registrant
to prevail is confusing as to where it originates from).

Finally, the edits also reemphasize the phrase “an unsuccessful attempt to
invoke judicial consideration of its case” is also inappropriately leading,
implying that a registrant’s protection of its domain from being taken is a
hopeless folly.  That's also not right or accurate.  It's not an "attempt"
- it's the registrant's right, and the registrant seeks a substantive
determination, not just vague consideration.  As such I suggest that phrase
(here and anywhere else in the report) be changed to the following:

"a court's decision to not hear the merits of its case"

(I'll resubmit suggestions on the wraparound separately.)

Sincerely,
Jay Chapman

On Tue, Sep 14, 2021 at 4:26 AM Chris Disspain via gnso-igo-wt <
gnso-igo-wt at icann.org> wrote:

> Thank you Alex.
>
> I agree that your wording accurately reflects the 2 sides of the
> discussion and so (subject to ant strong objections) suggest we incorporate
> it.
>
> Cheers,
>
> Chris Disspain
> chris at disspain.uk
>
> +44 7880 642456
>
>
> On 13 Sep 2021, at 17:37, Alexandra.EXCOFFIER-NOSOV--- via gnso-igo-wt <
> gnso-igo-wt at icann.org> wrote:
>
> Dear Mary, all,
>
> As mentioned during the call, I’ve only reviewed the track changes in the
> full Initial Report document and have the following issue at the bottom of
> page 14.  It currently reads :
>
> “Some EPDP team members believe that preserving the option for a
> registrant to go to arbitration following an unsuccessful attempt to invoke
> judicial consideration of its case represents a “second bite at the apple”,
> while other members thought that retaining the registrant’s ability to
> choose to go to court as an initial option was important to ensure fairness
> as well as compliance with the GNSO Council’s instructions.”
>
> This is quite leading language it makes it sounds that only the second
> option is fair, preserves the registrant’s right to go to court and is in
> line with GNSO instructions.  I would propose rather:
>
> Some EPDP team members believe that preserving the option for a registrant
> to go to arbitration following an unsuccessful attempt to invoke judicial
> consideration of its case represents an unfair, inefficient and costly “second
> bite at the apple” [see above chart], while other members thought that
> retaining the registrant’s ability to choose to go to arbitration
> following an unsuccessful attempt to invoke judicial consideration of its
> case was important to ensure fairness and to have a determination on the
> merits of the case. […]
>
> Thank you,
> Alex
>
>
> *From:* gnso-igo-wt <gnso-igo-wt-bounces at icann.org> *On Behalf Of *BECKHAM
> Brian via gnso-igo-wt
> *Sent:* 13 September, 2021 4:46 PM
> *To:* gnso-igo-wt at icann.org
> *Subject:* Re: [gnso-igo-wt] FOR REVIEW: Updated Draft Initial Report
> (Re: FOR DISCUSSION: Updated draft preliminary recommendations and options)
>
> Hi Mary – a few super minor textual catches:
>
> At 1.1 – two “the” and two periods.
>
> At 1.2.2 – extra space between “from” and “judicial”.
>
> Speak soon on the rest!
>
> Brian
>
> *From:* gnso-igo-wt <gnso-igo-wt-bounces at icann.org> *On Behalf Of *Mary
> Wong via gnso-igo-wt
> *Sent:* Saturday, September 11, 2021 1:06 AM
> *To:* gnso-igo-wt at icann.org
> *Subject:* [gnso-igo-wt] FOR REVIEW: Updated Draft Initial Report (Re:
> FOR DISCUSSION: Updated draft preliminary recommendations and options)
>
> Hello again everyone,
>
> Following up on the below, please find attached a redlined and clean copy
> of the latest version of the draft Initial Report. For ease of review,
> we’ve accepted most of the previous redlined comments (including from
> Brian’s markup of a few weeks ago) and highlighted new text where these
> came out of action items from the past two weeks of discussions. You’ll see
> also that we’ve not yet included the actual text of the draft
> recommendations in Section 2, as we understand that the main priority –
> especially on the call this coming Monday – is to finalize the
> recommendations text (including options for Public Comment.)  Staff will
> therefore incorporate/paste the final text of the preliminary
> recommendations and options after Monday’s call into a finalized Initial
> Report that we can post for Public Comment.
>
> As such, for Monday’s call, we anticipate focusing initially on the draft
> recommendations text (as sent out yesterday, below).
>
> Thanks and cheers
> Steve, Berry & Mary
>
> *From: *Mary Wong <mary.wong at icann.org>
> *Date: *Thursday, September 9, 2021 at 3:46 PM
> *To: *"gnso-igo-wt at icann.org" <gnso-igo-wt at icann.org>
> *Subject: *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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