[gnso-rpm-wg] Redline Document: Proposed Questions to URS Providers

Tue Apr 24 16:24:45 UTC 2018

Thanks for the updated document, and for reflecting many of the
comments I had previously submitted:

https://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002890.html

Some additional thoughts:

A] On page 13 of the redline document, Q10 (with regards to the
"ghost-writing"), the question was not intended to be "incendiary", as
per Justine Chew's comment. The issue had been brought up in the past
by Paul Keating (a member of this PDP), in a comment to an article in
2010 on CircleID:

http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/

See his comment (#2) on that page, which I'll reproduce in full:

"Jeff, Here are a few of the things that worry me about all of this:

1.  No ADR provider is under contract with ICANN.  There is thus
absolutely no accountability.  Given NAF's history with the
authorities in connection with their having fixed the credit card
arbitration process, one wonders why this situation remains.

2.  Concerning statistics (mostly about NAF) have come out regarding
repetative appointments of a select few panelists.

3.  On prior occasions I have asked for corrections in NAF decisions
and have been told that it was not possible, that they would not
request panelists to do so, and they objected to any attempt on my
part to raise the issue directly with the panelists - even if copying
the other side in any correspondence.

4.  I can understand the desire not to have matters continued post
decision - such would be contrary to the spirit of the UDRP.  However,
to undertake a change to decisions without publication and an audit
function is simply unheard of.  In the US as you know, when a court
alters an opinion it publishes notices of the modification and it is
the judges who are doing the modification.  Here there is no
indication at all that any panelist made the request and no public
record keeping of the change.

Overall, the ADR providers are a law unto themselves.  There is no
appeal and no accountability.  WHile 4(k) allows a post-UDRP legal
action, no care was taken when writing the UDRP to investigate whether
a proper cause of action exists for such a proceeding in the "Mutual
Jurisdiction".  There are no standards for panelists (one is a traffic
judge with no IP experience at all).  Appointments are not
statistically random.  They create their own supplemental rules.  They
actively and selectively promote lines of decisions (e.g. WIPO's Panel
Guidelines).  In the case of NAF they are (with reason) suspected of
having inside clerks ghost-write opinions for delivery to the
panelists.  Now this.  We are in a race to the bottom here.  While
overall I would say that the vast majority of decisions are correctly
decided, it is worrying that registrants are forced by contract to
participate in such a system.  The proper test for a judicial system
is not whether it gets it right in the easy cases but rather it has
adequate protections to ensure that the difficult ones are treated
properly. "

Given that, I thought it appropriate to ask that particular question,
so that the providers can let us know whether that ghost-writing is
actually happening or not. Frankly, I found it disturbing that it
might be happening when I first learned of that possibility back in
2010, and if it's happening, then the rules need to be strengthened.

B] With regards to the "Effect of Court Proceedings" question (page 15
of the redline document), we know that WIPO is aware of court
proceedings after UDRPs (see:
http://www.wipo.int/amc/en/domains/challenged/ , although they've
failed to update that regularly, despite new cases being brought to
their attention). Perhaps something similar exists for the URS. If the
providers aren't aware of it (and you'd think they would be, given
their "suspension' nameservers would be changed by the registry
operator to reflect a court proceeding), then the registry operators
should be asked (since they'd probably be ordered to change the
nameservers back).

C]. With regards to the final question on page 16 (running on to page
17), Sub Teams shouldn't be making "conclusions" on anything
(decisions are made by the entire membership, not subteams). As to the
merits/scope of that question, it's not been all rainbows and unicorns
at NAF. I think it's important to know whether they've actually
learned from their past, and adopted changes to reflect the concerns
in those serious legal matters. If they haven't, that it's just been
"business as usual" for the domain-related cases (after no longer
doing consumer credit disputes), then that has policy implications. If
we as a PDP simply go with the answers already submitted, that's fine
with me, but I was bending over backwards to give them a chance to
improve their answers.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Tue, Apr 24, 2018 at 11:32 AM, Ariel Liang <ariel.liang at icann.org> wrote:
> Hello everyone,
>
>
>
> In preparation for tomorrow’s WG call, please be so kind to find attached
> the redline document of the proposed questions to URS Providers. The
> document includes comments/suggestions from WG members, and the
> input/feedback to these comments/suggestions from the Providers Sub Team
> (received by the deadline at 12:00 UTC on Tuesday, 24 April).
>
>
>
> Please be so kind to review this redline document prior to the call tomorrow
> (Wednesday, 25 April at 12:00 UTC). Thanks again to those who have commented
> and provided input!
>
>
>
> Best Regards,
>
> Mary, Julie, Ariel, and Berry
>
>
>
>
>
> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Julie Hedlund
> <julie.hedlund at icann.org>
> Date: Friday, April 20, 2018 at 2:43 PM
> To: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
> Subject: [gnso-rpm-wg] Proposed agenda for RPM Working Group call on 25
> April 2018 at 1200 UTC
>
>
>
> Dear RPM PDP WG members,
>
>
>
> Per the WG Co-Chairs, here is the proposed agenda for the Working Group call
> Wednesday, 25 April 2018, scheduled for 1200 UTC (note earlier time –
> calendar invite will be sent via separate email):
>
>
>
> Proposed Agenda:
>
> Roll call and updates to Statements of Interest
> Status of Questions for Practitioners
> Finalize Questions for Providers
> Notice of agenda for 02 May meeting
>
>
>
> Best regards,
>
> Mary, Julie, Ariel and Berry
>
>
>
>
>
>
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