[bc-gnso] RE: ICANN Board Considering New UDRP Provider

Thanks Elisa. What is the procedure for putting that message together? Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Elisa Cooper [mailto:Elisa.Cooper@markmonitor.com] Sent: Monday, February 25, 2013 1:07 PM To: Phil Corwin; bc-gnso@icann.org Subject: RE: ICANN Board Considering New UDRP Provider Yes - I would be supportive of sending an e-mail to the Board restating our position that no new UDRP providers be accredited until there is a standard contract. Best, Elisa Elisa Cooper Director of Product Marketing MarkMonitor 208 389-5779 PH From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Monday, February 25, 2013 9:55 AM To: bc-gnso@icann.org<mailto:bc-gnso@icann.org> Subject: [bc-gnso] RE: ICANN Board Considering New UDRP Provider Importance: High On Saturday I sent the e-mail below to all BC members, requesting that the BC weigh in with the Board prior to its special meeting scheduled for this Thursday, February 28th at which the request of the ACDR to be an accredited UDRP provider is on the consent calendar. While the listing does not indicate whether the Board is lined up to approve or disapprove the request, one must presume that it would not be on the consent calendar if approval was not contemplated. Here is additional information regarding this matter: * ACDR's application to be a UDRP provider was opened to public comment on September 28, 2010. In other words this matter was first contemplated almost two and one half years ago and ICANN has said and done nothing more on it since that time http://www.icann.org/en/news/announcements/announcement-28sep10-en.htm . * In addition to the BC comment requesting that no new UDRP providers be accredited until ICANN developed a standard contract for all UDRP providers, the IPC also expressed concerns about the application. All comments may be viewed at http://forum.icann.org/lists/acdr-proposal/ . A summary of comments prepared by ICANN staff is below. In view of the facts that this matter has been dormant for the past 2.5 years, that ICANN has added it to the Board's calendar without any public notice other than the publication of the calendar, that ICANN has not stated whether and to what extent it has taken into account and accommodated the public comments (or whether ACDR has submitted a revised proposal) - and that this matter will be discussed and decided by the Board in about 72 hours -I am again requesting that the BC take immediate action to communicate the following to the Board: * Reiterate its position that no new UDRP providers should be approved absent development of a standard contract for all UDRP providers. * Defer action on this matter until a public notice has been published advising the community of whether and to what extent ACDR's application to be a UDRP provider has been revised to accommodate the comments that were received in 2010. The BC has been vigilant in asserting its established policy positions in other matters when the need to do so has arisen, and I would hope and expect that it will do the same in this case. Best regards, Philip ICANN staff summary of comments received --- http://forum.icann.org/lists/acdr-proposal/msg00007.html Summary and Analysis of Public Comments for ACDR Proposal to be Recognized as an Official Dispute Resolution Provider Under the UDRP Comment period: 28 September 2010 - 28 October 2010 Background The Arab Center for Domain Name Dispute Resolution (ACDR) submitted a proposal to ICANN to be recognized as an official dispute resolution provider under the UDRP. The proposal was submitted pursuant to the process specified at http://www.icann.org/en/dndr/udrp/provider-approval-process.htm . At its 5 August 2010 meeting, the Board approved staff's recommendation to publish the ACDR proposal for a public comment for a period of not less than 30 days. Comments received A total of seven comments were received. Summary of relevant comments George Kirikos of Leap Financial Services Inc. commented that ICANN should not approve another UDRP provider and should instead prioritize bringing existing UDRP providers under contract. http://forum.icann.org/lists/acdr-proposal/msg00000.html Barbara Madonik of Unicom Communication Consultants Inc. commented that while she applauds the attempt to establish an international center, the locale of the ACDR "might not be ideal" and ICANN should seek a more neutral location to serve both Arab and non-Arab countries. http://forum.icann.org/lists/acdr-proposal/msg00001.html Moe Alramahi expressed support for the ACDR's proposal, noting that it is "reasonable, comprehensive and robust." Mr. Alramahi also noted that recent developments in the domain name system, such as the introduction of IDNs and gTLDs will lead to increased disputes, and local knowledge and expertise will expedite the handling of those disputes. http://forum.icann.org/lists/acdr-proposal/msg00002.html A commenter identified as Volodya submitted comments covering positive and negative aspects of the ACDR proposal. Among the positives are the location of the Center, which will provide a "more balanced process"; the provision of multilingual services, and the multinational composition of the initial panel. Among the negatives are the apparent view of the ACDR to enforce the "strong protection of Intellectual Property Rights," which raises questions of the ACDR's commitment to neutrality. Further, the Advisory Board's selection is based upon experience in "intellectual property protection" - again demonstrating a bias. Though the panel selection procedures allow for persons to be chosen that "do[] not openly show support for Intellectual Property," the remainder of the document "suggests . . . a deliberate attempt to derail the neutral process of domain name resolution." Volodya notes that this could result in biased panels, and would not represent the "complexity of the IP debate." http://forum.icann.org/lists/acdr-proposal/msg00003.html Steve DelBianco on behalf of the ICANN Business Constituency (BC) submitted the BC's comment that it cannot support the approval of ACDR's proposal nor any other proposal until "ICANN implements a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities." The BC noted that gTLD names can only be registered through accredited registrars under contract with ICANN, but non-contracted UDRP providers have the power to order the involuntary deletion or transfer of those same names. The BC raised a concern of the consistency of the UDRP process among providers, and noted that these concerns grow if additional providers are approved without first creating a uniform framework. Therefore, the BC "advocates" that ICANN should first standardize a framework for UDRP providers - allowing for regular ICANN review and ultimate loss of approval where appropriate - prior to approving any new providers. The creation of a uniform framework - including constraints on provider authority - is increasingly important with the anticipated expansion of gTLDs and jurisdictions where disputes are likely to arise. This will further the goal of consistency among decisions and will allow the UDRP to remain "an expedited an lower cost remediation" to address cybersquatting. The BC notes that the standardization of provider practices does not require a full review of the substantive elements of the UDRP. http://forum.icann.org/lists/acdr-proposal/msg00004.html J. Scott Evans on behalf of the Intellectual Property Constituency (IPC) submitted conditional approval of the ACDR proposal, noting the geographic and cultural diversity the ACDR would bring to the UDRP process at a time where Arabic expertise is needed. The IPC provides substantive comment on portions of the ACDR's proposal, suggesting that a proposal adopting all of the IPC's modifications would be appropriate for approval, but if the ACDR elects not to incorporate all revisions, the proposal should be presented for further public comment. The IPC also cautioned that "any enthusiasm for the ACDR's proposal must be tempered by the desire to ensure a predictable and equitable system of domain name dispute resolution - as opposed to any profit-driven 'race to the bottom' between UDRP providers." The IPC's substantive comments on the proposal identified issues such as potential inconsistencies with the UDRP and its Rules on electronic filings, commencement dates, and definition of "writings." The IPC also recommends changes to the fee structure proposed, with an eye to minimizing fees to complainants. Additional recommendations include: inclusion of statements on the commitment to impartiality and fairness; additional information on the start-up period and background and track record for handling ADR proceedings; and clarification of the role of a presiding panelist. http://forum.icann.org/lists/acdr-proposal/msg00006.html Philip Corwin on behalf of the Internet Commerce Association (ICA) submitted its opposition to the ACDR proposal. As with the BC comments, the ICA notes that it "strongly opposes" the approval of any new UDRP dispute resolution provider until ICANN forms a uniform, enforceable agreement with all UDRP providers, to assure due process to all parties to a UDRP actions, and to prevent forum shopping among UDRP providers. The ICA provides substantial discussion of the need for enforceable agreements with UDRP providers, echoing many comments made by the BC regarding the contractual regime in place for the registration of domain names within gTLDs and the lack of contracts with the entities that may force involuntary deletions or transfers of those names. The ICA emphasizes the need for uniformity of process that can be achieved through enforceable agreements. The ICA comments refer to prior ICA communications on this same topic, including comments relating to a proposal of another UDRP provider to allow for reduced fees for UDRP proceedings where no response is filed. The ICA provides a suggested list of topics that such an agreement should encompass. The ICA then identified deficiencies to be addressed in ACDR's proposal. These deficiencies include: a lack of "meaningful" information on the types of arbitration handled by the ACDR's component entities and their "track records"; more fulsome documentation of the preparation of panel training materials; no representations of monthly case handling capabilities; the "meaningless" assertion of being able to handle 5,000 proceedings in a start-up period, particularly when compared to the numbers of cases handled by existing UDRP providers; a lack of description of communications with other UDRP providers, and a commitment to researching decisions of other providers so as to assure consistency. ICA notes its opinion that if ACDR is approved as a provider, a strict limitation on the number of cases it may handle, subject to an ICANN quality review before the limitation can be lifted. Finally, ICA comments on the confidentiality of ACDR's internal operating procedures and that the community will not be able to review those for fairness. http://forum.icann.org/lists/acdr-proposal/msg00005.html Analysis and Next Steps The commenters were of varied opinions on the ACDR's proposal: Three commenters (George Kirikos, the BC and the ICA) were expressly against the ACDR proposal. The IPC noted its conditional approval subject to incorporation of suggested changes, and only one commenter (Alramahi) submitted unqualified support for the ACDR proposal. Some commenters identified the fact that the ACDR would bring greater cultural and geographic diversity to the UDRP providers, as well as expand multi-lingual abilities of UDRP providers. Though one commenter questioned whether Jordan is a neutral enough locale for a UDRP provider, if the ACDR were to be approved as a provider, such approval would not limit the ability for others in the region to seek to become an approved provider as well. The three commenters opposed to the approval of the ACDR proposal noted their opinion that ICANN should not approve any additional UDRP providers prior to establishing a uniform, enforceable arrangement with all existing UDRP providers. The ICA also recommended that ICANN undertake an expert third party review of the operation of UDRP generally. One commenter, Volodya, raised the question of the neutrality of the panelists to be appointed by the center, based upon the statement in the ACDR's proposal that it will enforce the "strong protection of Intellectual Property Rights." No other commenters raised this neutrality argument. The IPC and the ICA each provided substantial comments on the substance of the ACDR proposal. The IPC noted that if all of its suggestions were addressed, then it may be appropriate for ICANN to approve the ACDR's application; otherwise the proposal should be posted for additional public comment. The ICA, after attempting to evaluate the proposal against the published criteria for applying to be a UDRP provider, suggested that there is no way for ICANN to proceed to approval of the ACDR's proposal. Some areas identified by the IPC and ICA include: (i) Provision of more detail on track record in handling alternative dispute resolution proceedings; (ii) A more precise statement regarding the case load administrative capacity that the ACDR anticipates handling; (iii) Better documentation regarding the creation of training materials; (iv) Revision of specific terms in the supplemental rules to better align with the UDRP process; (v) Revision to the ACDR's fee structure; and (vi) Release of confidential internal operating procedures. ICANN is providing the ACDR with a copy of this summary and analysis so that the ACDR may determine how to respond and whether it wishes to revise any portion of its proposal. When a revised proposal is received, the proposal will be reviewed to determine if further public comment is advisable prior to presentation to the Board for consideration. Further comment may not be necessary, for example, if the ACDR elects to not alter its fee schedule, as the UDRP allows providers to set their own fees. Separate from the ACDR proposal, ICANN has been undertaking a process to review its relationships with UDRP providers, and that review is ongoing. Contributors (chronological order of posting): George Kirikos, President, Leap of Faith Financial Services Inc. Barbara Madonik, President, Unicom Communication Consultants Inc. Moe Alramahi, Law Lecturer/ Domain Name Panelist (ADNDRC) Volodya Steve DelBianco, Business Constituency J. Scott Evans, Intellectual Property Constituency Philip Corwin, Internet Commerce Association Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Phil Corwin Sent: Saturday, February 23, 2013 2:36 PM To: Phil Corwin; bc-gnso@icann.org<mailto:bc-gnso@icann.org> Subject: RE: ICANN Board Considering New UDRP Provider Importance: High Fellow BC Members: In October 2010 the BC adopted a position of non-support the accreditation of the Arab Center for Domain name Dispute Resolution or any other new gTLD provider "until ICANN implements a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities." I was the rapporteur for the position statement but it received consensus support from the entire BC, with many trademark owners expressing concern about a diminishment of UDRP standards in the absence of some standard and enforceable mechanism to assure uniform application of that policy. The accreditation of the ACDR is on the ICANN Board's Consent calendar for its meeting of Thursday, February 28th. I am hereby requesting that the BC communicate this position statement to the Board in advance of its discussion of that matter, as it has done in the past on other issues for which the BC has a relevant established position. Thank you for your consideration of this request. Best, Philip http://forum.icann.org/lists/acdr-proposal/msg00004.html Business Constituency (BC) Comment on ICANN Proposal to Recognize New Domain Name Dispute Provider *Background* There is a pending request for comment regarding the application of the Arab Center for Domain Name Dispute Resolution (ACDR) to become a certified Uniform Dispute Resolution Procedure (UDRP) arbitration provider. *Summary* The Business Constituency (BC) cannot support approval of this or any other UDRP accreditation application at this time on the grounds that no new UDRP providers should be accredited until ICANN implements a standard mechanism for establishing uniform rules and procedures and flexible means of delineating and enforcing arbitration provider responsibilities. *Explanation* The BC notes that the voluntary registration or renewal of a gTLD domain must be undertaken via an ICANN-accredited registrar. All registrars are subject to a uniform contractual agreement with ICANN, the Registrar Accreditation Agreement (RAA). ICANN recently strengthened the RAA with additional amendments and the addition of flexible enforcement options, and a Final Report proposing additional RAA amendments has just been delivered to the GNSO for its consideration. In stark contrast, the involuntary termination or transfer of a domain can be ordered under the authority of a UDRP provider that has been accredited by ICANN but which is not bound by any constraints on or requirements pertaining to the exercise of that delegated authority. This has led to increasing concerns about the lack of adequate procedural and substantive consistency in the UDRP process. Such concerns are likely to grow if additional providers are accredited in the absence of the uniform framework of a standard mechanism. The BC strongly advocates that ICANN must first implement a standard mechanism with any and all UDRP arbitration providers that defines and constrains their authority and powers, and establishes regular and standardized review by ICANN with flexible and effective means of enforcement. The ultimate sanction of cancelling accreditation is an extreme sanction that ICANN has demonstrated a reluctance to initiate in other contexts. ICANN appears to be transitioning from an environment in which the vast majority of UDRP cases (approximately 98%) were handled by two arbitration providers (WIPO and NAF) and in which significant gTLDs were based in a limited number of national jurisdictions to one in which the majority of gTLDs and UDRP providers may well be headquartered in a widely distributed group of jurisdictions. In the future, business interests may well be investing substantial amounts in these new gTLDs, for both defensive, new branding, and other purposes. In this type of environment it is even more important that all UDRP providers be subject to uniform and enforceable responsibilities, as that is the only means of furthering the goal that UDRP decisions are consistent within and among UDRP providers, and that the UDRP remains an expedited and lower cost remediation for addressing cybersquatting. The BC notes that the issue of whether UDRP providers should be under a standard mechanism with ICANN is almost entirely separable from the question of whether the UDRP evaluation standards for determining the existence of cybersquatting should be reformed. There is no need to debate the substantive elements of the UDRP in order to address the fundamental issue of whether UDRP providers should be under a standard mechanism. *** The rapporteur for these comments was Phil Corwin. ICANN Business Constituency http://www.bizconst.org Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-bc-gnso@icann.org<mailto:owner-bc-gnso@icann.org> [mailto:owner-bc-gnso@icann.org] On Behalf Of Phil Corwin Sent: Friday, February 22, 2013 3:37 PM To: bc-gnso@icann.org<mailto:bc-gnso@icann.org> Subject: [bc-gnso] ICANN Board Considering New UDRP Provider Importance: High FYI, on the consent calendar for the 2/28 ICANN Board Meeting https://www.icann.org/en/groups/board/documents/agenda-28feb13-en.htm --- Arab Center for Dispute Resolution's Proposal to Serve as UDRP Provider You may recall that the BC is on record as stating several years back (don't have time right now to find document) that ICANN should not accredit any new UDRP providers until it developed a standard contract for all providers. My recollection is that this provider was one of the two being considered at that time and is based in Amman, Jordan. In a related matter, while ICANN announced yesterday that NAF would be a URS provider, it did not state whether NAF would be placed under contract per the STI recommendation. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2013.0.2899 / Virus Database: 2639/6119 - Release Date: 02/20/13 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2013.0.2899 / Virus Database: 2639/6119 - Release Date: 02/20/13 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2013.0.2899 / Virus Database: 2641/6130 - Release Date: 02/25/13