[gnso-igo-wt] Final Draft Recommendations #1 - #6

Tue Sep 14 13:25:58 UTC 2021

I also have issues with these changes, in particular this addition: “ but its investigation led to the consensus conclusion that some IGOs had sucessfully utilized the existing rights protection mechanisms such as the UDRP” which even if true as part of the previous PDP process (I don’t know) is not the main conclusion of that process, and even if years ago one IGOs used the UDRP a couple of times it is clearly is anecdotal and probably an uninformed decision of the IGO.

Having this text in is highly inflammatory and we have been through these discussions early on in our group.  The reason we have the this process is because most IGOs have not and cannot use a process which potentially requires them to waive immunities.

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org> On Behalf Of BECKHAM Brian via gnso-igo-wt
Sent: 14 September, 2021 3:17 PM
To: gnso-igo-wt at icann.org
Subject: Re: [gnso-igo-wt] Final Draft Recommendations #1 - #6

These suggestions are problematic, and it would be better if we can stick to the text that we have been working off of (I realize Jay submitted them earlier, but they have not been added to drafts, nor discussed).

As an example, the proposed language of “some” and “may” flies in the face of the longstanding GAC and IGO request for curative (let alone preventative, as David reminded us yesterday) protection that is the central task of this group.

From: gnso-igo-wt <gnso-igo-wt-bounces at icann.org<mailto:gnso-igo-wt-bounces at icann.org>> On Behalf Of Jay Chapman via gnso-igo-wt
Sent: Tuesday, September 14, 2021 3:05 PM
To: Chris Disspain <chris at disspain.uk<mailto:chris at disspain.uk>>
Cc: gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>
Subject: Re: [gnso-igo-wt] Final Draft Recommendations #1 - #6

As to the wraparound, I submit again the following suggestions (underlined):

-First sentence of the Preamble:

"This Initial Report is the latest work that has been undertaken by the ICANN community to consider and facilitate, where appropriate, the protection of IGO identifiers in the domain name system (DNS)."

-Paragraph just prior to "1.2 Preliminary Recommendations":

"During the GNSO Council’s deliberations over the Final Report from the IGO-INGO Access to Curative Rights PDP, concerns were expressed as to whether Recommendation #5 will require a substantive modification to the UDRP and URS as well as result in a potential reduction of the existing level of curative protections currently available to IGOs – such as they are, i.e., at present IGOs must, like every UDRP complainant, agree to the “mutual jurisdiction provision” to be eligible to file a UDRP or URS case  (the PDP had been chartered to determine “whether to amend the UDRP and URS to allow access to and use of these mechanisms by IGOs and INGOs, and, if so in what respects or whether a separate, narrowly-tailored dispute resolution procedure at the second level modeled on the UDRP and URS that takes into account the particular needs and specific circumstances of IGOs and INGOs should be developed,” but its investigation led to the consensus conclusion that some IGOs had sucessfully utilized the existing rights protection mechanisms such as the UDRP, and as such, it did not amend the UDRP or URS, and thus further determined there was no need for new RPMs specifically for IGOs.  The GNSO Council approved these consensus determinations.”). As a result, the Council decided that additional policy work needed to be done on the specific issue that Recommendation #5 had been intended to resolve."

-"2 Preliminary Recommendations", second paragraph, beginning of first sentence:

"This may present a challenge for some IGOs..."

Thanks!

Sincerely,
Jay Chapman

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On Tue, Sep 14, 2021 at 4:07 AM Chris Disspain via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>> wrote:
I shall look now at the ‘wraparound’.

A number of small amendments to the Exec Summary just picking up on the point in my email below.

Red line attached.

Cheers,

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

+44 7880 642456

On 14 Sep 2021, at 09:48, Chris Disspain <chris at disspain.uk<mailto:chris at disspain.uk>> wrote:

Greetings All,

I have made a couple of small amendments to rec 4 (v) options 1 and 2 and the equivalent to rec 5 (iii).

I have in each case amended the first sentence from -

'Where the registrant initiates court proceedings and the result is that the court is unable to proceed...'

to -

'Where the registrant initiates court proceedings and the result is that the court decides not to hear the merits of the case...'

I think this is clearer wording.

I have attached the red line with those amendments incorporated.

Other than that, I believe the document accurately captures where we are and the issues/questions on which we seek comment.

I shall look now at the ‘wraparound’.

As you know the intention is to start the process for getting this out for comment by 1600 UTC today. Please send any ‘red flags’ to the list by 1400 UTC if at all possible so that we can assess whether we can, in fact send it out or whether we need to delay and meet further to discuss this initial report.

Cheers,

Chris
+44 7880 642456
<PastedGraphic-2.tiff>
<Draft Preliminary Recommendations - IGO EPDP - 13 Sept 2021 CD Redline.docx>

On 13 Sep 2021, at 20:59, Mary Wong via gnso-igo-wt <gnso-igo-wt at icann.org<mailto:gnso-igo-wt at icann.org>> wrote:

Dear all,

Thank you for the productive and constructive discussion earlier today. We are attaching – in clean and redlined format - what we believe is final text for the preliminary recommendations and various options under consideration that will go into the Initial Report. We hope we have managed to capture all the suggestions, agreements and changes discussed on the call today. We have also accepted all but one of Alexandra’s suggestions (below); the only one that we have not changed, after some consideration, is the suggestion to move the text about providing information about applicable arbitral rules (in Recommendation #4 (ii) and correspondingly in #5(ii), as edited by Chris) to a footnote as we thought it might create confusion as to what is, and isn’t, “officially” a recommendation.

We will proceed to update the draft Initial Report with the comments that Alexandra and Brian sent via email. In the absence of any further comments, we will request that ICANN org’s Public Comment team publish the report, as updated, tomorrow as planned so that we can meet our goal of closing the 40-day Public Comment period by the time ICANN72 begins.

Thank you all!

Cheers
Steve, Berry & Mary

From: "Alexandra.EXCOFFIER-NOSOV at oecd.org<mailto:Alexandra.EXCOFFIER-NOSOV at oecd.org>" <Alexandra.EXCOFFIER-NOSOV at oecd.org<mailto:Alexandra.EXCOFFIER-NOSOV at oecd.org>>
Date: Monday, September 13, 2021 at 9:40 AM
To: Mary Wong <mary.wong at icann.org<mailto:mary.wong at icann.org>>
Cc: "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: [Ext] RE: [gnso-igo-wt] FOR DISCUSSION: Updated draft preliminary recommendations and options

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<https://eur02.safelinks.protection.outlook.com/?url=http%3A%2F%2F4.vi%2F&data=04%7C01%7CAlexandra.EXCOFFIER-NOSOV%40oecd.org%7Cce2791dfe9734624bc3208d97781f326%7Cac41c7d41f61460db0f4fc925a2b471c%7C0%7C0%7C637672222290860468%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=7L0NrQ9A8zgzrqH5oY2XgJy9E0UqO7kLCJMnyK7DI%2FA%3D&reserved=0> -- 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<mailto: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<mailto: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
<CLEAN Draft Preliminary Recommendations - IGO EPDP - 13 Sept 2021.docx><Draft Preliminary Recommendations - IGO EPDP - 13 Sept 2021.docx>_______________________________________________
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