[gnso-igo-wt] Updated text (reconciling suggestions from Alexandra and Jay) plus a staff comment on the IGOs' chart

Tue Sep 14 14:02:19 UTC 2021

Yes - thanks, Mary!

Sincerely,
Jay Chapman

On Tue, Sep 14, 2021 at 8:58 AM Mary Wong <mary.wong at icann.org> wrote:

> Hello everyone,
>
>
>
> As Chris has requested, staff has tried to reconcile the language and
> concerns voiced by Alexandra and Jay for the following sentence; certain
> parts of the original text from the draft that was circulated late last
> week have been deleted and new replacement wording added in red. We suggest
> removing references either way to fairness, to allow this group to proceed
> with publishing the Initial Report today for Public Comment. As noted
> previously, this is not the Final Report and the EPDP team will have the
> opportunity to discuss and revise the text during your analysis of Public
> Comments.
>
>
>
> “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”,
> would result in a much more costly and inefficient process, while other
> members thought that retaining the registrant’s ability to proceed to
> arbitration following its choice choose to go to court as an initial
> option was important to ensure that the registrant can seek judicial
> consideration of the merits of its case fairness as well as compliance
> with the GNSO Council’s instructions.”
>
>
>
> As for the chart, we already have a reference in that paragraph that
> indicates the chart was submitted by IGO members of the EPDP team. If it
> will make things clearer, we can add a footnote to clarify that the chart
> is not being presented as an agreed depiction by the full EPDP team. We can
> also add a similar footnote to the URS chart that we are inserting, to
> clarify that it was prepared by staff and should not be read as something
> that the EPDP team has approved. Will that work?
>
>
>
> Thanks and cheers
>
> Steve, Berry & Mary
>
>
>
> *From: *gnso-igo-wt <gnso-igo-wt-bounces at icann.org> on behalf of
> "Alexandra.EXCOFFIER-NOSOV--- via gnso-igo-wt" <gnso-igo-wt at icann.org>
> *Reply-To: *"Alexandra.EXCOFFIER-NOSOV at oecd.org" <
> Alexandra.EXCOFFIER-NOSOV at oecd.org>
> *Date: *Tuesday, September 14, 2021 at 9:15 AM
> *To: *"jay at digimedia.com" <jay at digimedia.com>, "chris at disspain.uk" <
> chris at disspain.uk>
> *Cc: *"gnso-igo-wt at icann.org" <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)
>
>
>
> I seriously object to indicating which position is in line with GNSO
> Council’s instructions.  That’s up to the GNSO Council to determine, not up
> to Jay.
>
>
>
> Also, neither position takes away the registrant’s right to go to court,
> whereas the text implies that only the second position ensures this right
> or that only this option is fair.  Also arbitration is not “judicial
> review”.  Finally, the edits I proposed were symmetrical, as to what
> happens if the court does not hear the case and I added the part regarding
> merits of the case as I knew that it was important to Jay.
>
>
>
> *From:* Jay Chapman <jay at digimedia.com>
> *Sent:* 14 September, 2021 2:54 PM
> *To:* Chris Disspain <chris at disspain.uk>
> *Cc:* EXCOFFIER-NOSOV Alexandra, SGE/LEG <
> Alexandra.EXCOFFIER-NOSOV at oecd.org>; 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)
>
>
>
> 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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