[gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Paul Keating
Paul at law.es
Wed May 2 17:24:16 UTC 2018
Because they both seek data from 2 different sources and both are important
to form a complete understanding as to (a) if there is an issue to deal with
and (b) if there is, how is it solved.
The Providers cannot give accurate information as to what Practitioners do
to ensure neutrality (it is fundamentally their responsibility in processing
any certification)
The Practitioners cannot provide any insight into what the Providers do with
the certifications or how they police their panelists in connection
therewith.
Paul
From: Cyntia King <cking at modernip.com>
Date: Wednesday, May 2, 2018 at 7:03 PM
To: Paul Keating <paul at law.es>, 'Susan Payne' <susan.payne at valideus.com>,
'George Kirikos' <icann at leap.com>, <gnso-rpm-wg at icann.org>
Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group
call on 25 April 2018 at 1700 UTC
> Hi Paul,
>
> Question: If what you say is true, they do we need to have the questions in
> both surveys? Perhaps we should direct the Qs to the Practitioners then &
> remove them from the Provider survey?
>
> Cyntia King
> E: cking at modernip.com <mailto:cking at modernip.com>
> O: +1 81-ModernIP
> C: +1 818.209.6088
>
> -----Original Message-----
> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> On Behalf Of Paul Keating
> Sent: Wednesday, May 2, 2018 10:54 AM
> To: Susan Payne <susan.payne at valideus.com>; George Kirikos <icann at leap.com>;
> gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group
> call on 25 April 2018 at 1700 UTC
>
> Sorry but I disagree.
>
> The Providers can respond only insofar as they have knowledge. They could
> not, for example, provide any insight into the true nature or validity of any
> neutrality assertion they may receive.
>
> The Practitioners are the ones that are providing the basis for the neutrality
> certification that is provided by the ADR Provider.
>
> Both are completely justified IMHOI.
>
> Paul
>
>
> On 5/2/18, 5:31 PM, "Susan Payne" <susan.payne at valideus.com
> <mailto:susan.payne at valideus.com> > wrote:
>
>> >I think we need to remind ourselves of why we are asking questions of
>> >practitioners in the first place. As a group it was decided that
>> >practitioners who have used the URS (which should be more than de
>> >minimis
>> >usage) may be able to provide the WG with insights on how the procedure
>> >works in practice, both positives and negatives. So, do the rules
>> >require one of the parties (for whom the practitioners are acting) to
>> >do something which is impractical, for example. The questions flagged
>> >by Greg and Georges do not do this. As has been pointed out, we
>> >already have various questions for the providers which go to
>> >neutrality/impartiality of the examiners. These questions should come
>> >out of the practitioner's questionnaire.
>> >
>> >
>> >
>> >Susan Payne
>> >Head of Legal Policy | Valideus Ltd
>> >28-30 Little Russell Street
>> >London, WC1A 2HN, United Kingdom
>> >
>> >E: susan.payne at valideus.com <mailto:susan.payne at valideus.com>
>> >D: +44 20 7421 8255
>> >T: +44 20 7421 8299
>> >M: +44 7971 661175
>> >
>> >
>> >-----Original Message-----
>> >From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org
>> <mailto:gnso-rpm-wg-bounces at icann.org> ] On Behalf Of
>> >Paul Keating
>> >Sent: 02 May 2018 15:24
>> >To: George Kirikos <icann at leap.com <mailto:icann at leap.com> >;
>> gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org>
>> >Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working
>> >Group call on 25 April 2018 at 1700 UTC
>> >
>> >My questions were intended to investigate an area that has been the
>> >cause of significant concern - particularly amongst the Respondent¹s
>> >attorney side of things.
>> >
>> >First, the presumption in the UDRP is that the panelists are in fact
>> >neutral. While there is a provision for the ADR provider to state as
>> >much, we have no insight into how that is determined and what, if any,
>> >efforts are undertaken to investigate or police statements of neutrality.
>> >
>> >Second, there is no guidance in any of the applicable rules dealing
>> >with conflicts of interest and no guidance on how ³neutrality² is
>> >actually determined, other than perhaps a statement from the panelist.
>> >I have never seen or heard of any guidance provided to panelists by any
>> >ADR provider.
>> >
>> >Third, while I am happy that people discuss and edit the suggested
>> >questions, I would like to point out a few things:
>> >
>> > 1. "actual or potential conflict² is a well-known
>> ethical standard for
>> >attorneys and they are well versed in its meaning. Most professional
>> >conduct codes have restrictions that preclude attorneys (or their
>> >firms) from accepting or acting on behalf of clients that have an
>> >actual or potential conflict with pre-existing clients (or even past
>> clients).
>> >Conflicts are verified as a part of any new client intake. Conflicts
>> >are measured in terms of the client and parties that are potentially
>> >adverse to any client. Again, this is on a firm-wide basis and not
>> >limited to individual attorneys. Unfortunately, it is less than clear
>> >if these same rules apply when an attorney accepts an appointment as an
>> >arbitrator with an ADR provider. And, the extend to which panelists
>> >conduct conflicts checks (or even if they do) is unknown. Moreover,
>> >there are a number of panelists who are not licensed attorneys.
>> >
>> > 2. I cannot see that any of the proposed questions
>> are offensive in any
>> >manner. As an attorney I would expect to conduct a full-fledged
>> >conflicts check prior to accepting any appointment.
>> >
>> > 3. Contacts with third parties. This question is
>> intended to go beyond
>> >mere contacts with third parties and includes self-research, contact
>> >and communications with anyone else (e.g. Partners, associates, etc).
>> >The point is that the decision is supposed to be based entirely upon
>> >the papers as filed and in the rare instance investigations undertaken
>> >by the panel. However, there is nothing in the Rules that would
>> >authorize, for example, research undertaken by anyone else and provided to
>> the panelists.
>> >
>> > 4. These questions should also be directed to the
>> ADR providers to
>> >determine what extent, if any, they impose rules and to what extent, if
>> >any, they police the issue of conflicts beyond mere reliance upon the
>> >panelist statement.
>> >
>> >
>> >Paul
>> >
>> >
>> >On 5/2/18, 3:09 PM, "gnso-rpm-wg on behalf of George Kirikos"
>> ><gnso-rpm-wg-bounces at icann.org on behalf of icann at leap.com
>> <mailto:gnso-rpm-wg-bounces at icann.org%20on%20behalf%20of%20icann at leap.com> >
>> wrote:
>> >
>>> >>I agree with Michael. We can play around with the wording somewhat,
>>> >>but it's an important issue. DomainNameWire.com had a story that some
>>> >>might find of interest at:
>>> >>
>>> >>https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp
>>> <https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp>
>>> >>/
>>> >>
>>> >>Sincerely,
>>> >>
>>> >>George Kirikos
>>> >>416-588-0269
>>> >>http://www.leap.com/ <http://www.leap.com/>
>>> >>
>>> >>
>>> >>
>>> >>On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas
>>> >><mkaranicolas at gmail.com <mailto:mkaranicolas at gmail.com> > wrote:
>>>> >>> "The Examiners are supposed to declare conflicts of interest, but
>>>> >>> there is no instruction on how to implement that."
>>>> >>>
>>>> >>> To me - that's a powerful argument as to why we should be including
>>>> >>> these questions. It's an important area where the rules seem vague,
>>>> >>> and there could be a need for greater clarity. Questions about
>>>> >>> whether or not a strong standard is being carried out in practice
>>>> >>> would be very relevant to making that determination.
>>>> >>>
>>>> >>> That said - I do think there's room for improving the verbiage. I
>>>> >>> agree that the phrase "actual or potentially adverse" could be
>>>> >>> deleted from Q5. I think Q6 could be improved by narrowing it to
>>>> >>> communications with a third party related to the dispute.
>>>> >>>
>>>> >>> Best,
>>>> >>>
>>>> >>> Michael Karanicolas
>>>> >>>
>>>> >>>
>>>> >>>
>>>> >>> On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges
>>>> >>> <ghn at kilpatricktownsend.com <mailto:ghn at kilpatricktownsend.com> >
>>>> wrote:
>>>>> >>>> Dear All:
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> Below are the questions being referred to. I likewise object to
>>>>> >>>>these questions which have an underlying assumption that Panelists
>>>>> >>>>are somehow biased and don¹t screen conflicts properly. It also
>>>>> >>>>assumes that the panelists are all attorneys at law firms and the
>>>>> >>>>law firms do not have proper screening mechanisms for conflicts.
>>>>> >>>>Simply put, most of these questions are loaded questions that are
>>>>> >>>>meant to further a particular agenda. If we are going to go down
>>>>> >>>>the route of these type of loaded questions, should we also be
>>>>> >>>>asking about attorneys, for example, who represent parties that
>>>>> >>>>registered names with bogus contact information whether they
>>>>> >>>>conducted a thorough check so that they can certify that they
>>>>> >>>>truthfully identified the party they are representing and how they
>>>>> >>>>conducted that check (e.g., what mechanisms are in place and all
>>>>> >>>>steps taken).
>>>>> >>>>After
>>>>> >>>> all the ethical rules make clear that attorneys are bound by
>>>>> >>>>requirements that attorneys be truthful. In that vein, should we
>>>>> >>>>also ask whether the attorneys representing parties have been
>>>>> >>>>truthful and checked the facts that they are stating in their
>>>>> >>>>papers and what steps they take to certify and insure this. I
>>>>> >>>>can think of several examples I personally know of where an
>>>>> >>>>attorney simply lied in the submissions. Should this now be an
>>>>> >>>>entire line of inquiry. Should we ask whether Rule 11 type
>>>>> >>>>sanctions be available in URS cases where an attorney representing
>>>>> >>>>a party is found to represent a party with fake contact information
>>>>> >>>>or has lied in the papers. I can think of many more loaded lines
>>>>> >>>>of inquiries if that what some want to do, but ultimately I don¹t
>>>>> >>>>think these are going to be productive in moving the ball forward.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> In light of the questions that were suggested on the provider side
>>>>> >>>>of things, I think the only issue to raise is whether Panelists are
>>>>> >>>>impartial per the requirements of the rules and what providers do
>>>>> >>>>to make sure that is the case and nothing more, . These
>>>>> >>>>questions should not be here and should be deleted in their
>>>>> >>>>entirety
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> 4. Do you serve as a URS panelist?
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> A. Yes
>>>>> >>>>
>>>>> >>>> B. No
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> 5. If yes, do you undertake a law firm-wide conflicts check to
>>>>> >>>>verify that neither you nor your law firm has any actual or
>>>>> >>>>potentially adverse conflict of interest to the complainant and/or
>>>>> >>>>respondent?
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> A. Yes
>>>>> >>>>
>>>>> >>>> B. No
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> If yes, please briefly describe the methods used to verify the
>>>>> >>>>absence of
>>>>> >>>>conflicts:___________________________________________________¹
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> If yes, do you retain records of your search?
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> A. Yes
>>>>> >>>>
>>>>> >>>> B. No
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> 6. Have you ever communicated with a third party regarding an
>>>>> >>>>ongoing URS dispute in which you were a panelist?
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> A. Yes
>>>>> >>>>
>>>>> >>>> B. No
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> If yes, please briefly explain the nature of such
>>>>> >>>> communications:_________________________
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org
>>>>> <mailto:gnso-rpm-wg-bounces at icann.org> ] On Behalf
>>>>> >>>>Of Greg Shatan
>>>>> >>>> Sent: Wednesday, May 2, 2018 1:05 AM
>>>>> >>>> To: Julie Hedlund <julie.hedlund at icann.org
>>>>> <mailto:julie.hedlund at icann.org> >
>>>>> >>>> Cc: gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org>
>>>>> >>>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM
>>>>> >>>>Working Group call on 25 April 2018 at 1700 UTC
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> All,
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> I have significant objections to the questions to Examiners that
>>>>> >>>>were tacked on to the end of the Practitioners questionnaire at the
>>>>> >>>>11th hour.
>>>>> >>>> Apologies for not focusing on this before now. I don't believe
>>>>> >>>>these have really been properly reviewed or discussed.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> I believe these questions are inappropriate in a poll of
>>>>> >>>>practitioners, as
>>>>> >>>> these are questions directed to "panelists." (The proper term is
>>>>> >>>> Examiner....) It feels like a "bait and switch" tactic. If we are
>>>>> >>>>going to survey Examiners, let's survey Examiners -- not ambush
>>>>> >>>>practitioners.
>>>>> >>>>On
>>>>> >>>> that basis alone, we should eliminate these questions.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> I am also troubled by the questions themselves. Singling out these
>>>>> >>>>questions, out of all that we might ask Examiners, seems vaguely
>>>>> >>>>accusatory.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> The basis for these questions is questionable. I've reviewed the
>>>>> >>>>URS Procedures and Rules, and none of these questions comes out of
>>>>> >>>>a Procedure or Rule. The Examiners are supposed to declare
>>>>> >>>>conflicts of interest, but there is no instruction on how to
>>>>> >>>>implement that. As such, there is no requirement that an Examiner
>>>>> >>>>undertake any type of conflicts check much less something as
>>>>> >>>>specific as "a law firm-wide conflicts check to verify that neither
>>>>> >>>>you nor your law firm has any actual or potentially adverse conflict
>>>>> >>>>of interest to the complainant and/or respondent." Asking the
>>>>> >>>>question implies that this is an imperative when it is not.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> On top of that, this verbiage does not accurately describe a
>>>>> >>>>conflict check.
>>>>> >>>> What is a "potentially adverse conflict of interest"? Why is it
>>>>> >>>>only asking about adverse conflicts? I note that the Forum does
>>>>> >>>>have a Supplementary Rule that "A Examiner will be disqualified if
>>>>> >>>>circumstances exist that create a conflict of interest or cause the
>>>>> >>>>Examiner to be unfair and biased, including but not limited to ...
>>>>> >>>>The Examiner has served as an attorney to any party or the Examiner
>>>>> >>>>has been associated with an attorney who has represented a party
>>>>> >>>>during that association." This does not ask the Examiner to run a
>>>>> >>>>conflict check, but notably, the issue it raises is the exact
>>>>> >>>>opposite of the issue implied in these proposed questions -- the
>>>>> >>>>Forum is highlighting representing a party, not being adverse (much
>>>>> >>>>less "potentially adverse) to a party.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> Now, I'm not saying it's a bad idea for an Examiner to run a
>>>>> >>>>(properly
>>>>> >>>> defined) conflict check, but the very fact that we are debating
>>>>> >>>>Examiner actions and requirements in a practitioners poll should
>>>>> >>>>tell us we're in the wrong place.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> For that reason, I will not discuss the problems in the follow-up
>>>>> >>>>questions on conflict checks.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> The final question is even worse. ("Have you ever communicated with
>>>>> >>>>a third party regarding an ongoing URS dispute in which you were a
>>>>> >>>>panelist?') As far as I know, this is not prohibited behavior,
>>>>> >>>>especially not this broadly described. It seems designed to make
>>>>> >>>>people feel like they might have done something wrong. (If this is
>>>>> >>>>expressly prohibited by the Rules or Procedures, then perhaps we
>>>>> >>>>could fashion a question out of that Rule/Procedure if we were
>>>>> >>>>putting together a poll for Examiners.) Is it improper to
>>>>> >>>>"communicate" with your spouse about a URS case? With one of your
>>>>> >>>>law partners? With a fellow Examiner?
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> Long story short, these questions should be deleted.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> Greg
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund
>>>>> >>>><julie.hedlund at icann.org <mailto:julie.hedlund at icann.org> >
>>>>> >>>> wrote:
>>>>> >>>>
>>>>> >>>> Dear RPM PDP WG members,
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> Per the WG Co-Chairs, here is the proposed agenda for the Working
>>>>> >>>>Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times
>>>>> >>>>are proposed as estimates and may be adjusted.
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> Proposed Agenda:
>>>>> >>>>
>>>>> >>>> Roll call and updates to Statements of Interest (1 minute) Final
>>>>> >>>>Status of Questions for Practitioners and Providers (9 minutes)
>>>>> >>>>Report from the Documents Sub Team (20 minutes) Discussion on URS
>>>>> >>>>Phase II proposal (59 minutes) See John McElwaine¹s original email
>>>>> >>>>at:
>>>>> >>>> http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html
>>>>> <http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html>
>>>>> >>>>and a Google Sheet with the proposal as tab one, and the responses
>>>>> >>>>as tab two at:
>>>>> >>>>
>>>>> >>>>https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjv
>>>>> <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjv>
>>>>> >>>>whW
>>>>> >>>>F
>>>>> >>>>GZbuGpQnOgI/edit?usp=sharing
>>>>> >>>> Notice of agenda for 09 May meeting (1 minute)
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> Best regards,
>>>>> >>>>
>>>>> >>>> Mary, Julie, Ariel and Berry
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> _______________________________________________
>>>>> >>>> gnso-rpm-wg mailing list
>>>>> >>>> gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org>
>>>>> >>>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>>>>> <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
>>>>> >>>>
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>>>>> <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
>>>> >>> _______________________________________________
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>>>> >>> gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org>
>>>> >>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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>> >
>> >
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