[gnso-igo-wt] Final Draft Recommendations #1 - #6
Jay Chapman
jay at digimedia.com
Tue Sep 14 14:12:37 UTC 2021
Thanks for reconsidering.
No intent to inflame, so please don't shoot the messenger - it's just what
happened in the previous PDP, and why :)
Sincerely,
Jay Chapman
* <http://www.digimedia.com>*
102 S. Broadway, #200 - Edmond, OK 73034
jay at digimedia.com - (940) 691-1800
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On Tue, Sep 14, 2021 at 8:26 AM Alexandra.EXCOFFIER-NOSOV--- via
gnso-igo-wt <gnso-igo-wt at icann.org> wrote:
> 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> *On Behalf Of *Jay
> Chapman via gnso-igo-wt
> *Sent:* Tuesday, September 14, 2021 3:05 PM
> *To:* Chris Disspain <chris at disspain.uk>
> *Cc:* 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
>
> *[image: Image removed by sender.]*
> <https://eur02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.digimedia.com%2F&data=04%7C01%7CAlexandra.EXCOFFIER-NOSOV%40oecd.org%7Cce2791dfe9734624bc3208d97781f326%7Cac41c7d41f61460db0f4fc925a2b471c%7C0%7C0%7C637672222290850507%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=Dk8yPn2I8gcjeJzEwA%2FYKpHS2ELFxkbsiy9kuwFO3nY%3D&reserved=0>
>
> 102 S. Broadway, #200 - Edmond, OK 73034
>
> jay at digimedia.com - (940) 691-1800
>
> This e-mail & any attachment(s) is(/are) confidential & only for the
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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> 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
>
> +44 7880 642456
>
>
>
> On 14 Sep 2021, at 09:48, Chris Disspain <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>
> 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" <
> Alexandra.EXCOFFIER-NOSOV at oecd.org>
> *Date: *Monday, September 13, 2021 at 9:40 AM
> *To: *Mary Wong <mary.wong at icann.org>
> *Cc: *"gnso-igo-wt at icann.org" <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> *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
>
> <CLEAN Draft Preliminary Recommendations - IGO EPDP - 13 Sept
> 2021.docx><Draft Preliminary Recommendations - IGO EPDP - 13 Sept 2021.docx>
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