November 2017 - Gnso-igo-ingo-crp

Option #6 reminder
by George Kirikos Dec. 6, 2017

Dec. 6, 2017

At the last call, I was asked to resubmit Option #6 for discussion. One can read the original proposal at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html Conceptually, it's very simple. While other options consider what to do if one gets into the "special situation" we've discussed at length, this option is different because it would reduce the number of those special situations, by attempting to avoid the special situation entirely. The domain name owner mitigates the problem by suing "in rem" against the domain name itself, where the IGO isn't a named defendant and thus can't assert immunity at all. Option #6 simply modifies 4(k) of the policy, which currently requires that the registrar should lock the domain name if a case is brought against the UDRP complainant (i.e. "in personam"), to lock the domain name if any case is brought concerning the domain name dispute (in rem or in personam). The only effect of Option #6 is to require the locking in that situation (in rem suit) --- a domain name owner could already sue in rem if they wanted to, but it's uncertain whether or not a registrar would lock the domain name if they did so. Option #6 removes that uncertainty. This would actually be consistent with the first part of 4(k), which didn't specify that the case needed to be brought against the complainant, i.e it only said: "The mandatory administrative proceeding requirements set forth in Paragraph 4 shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded." It was only later on that the language (sloppily, in my opinion) required it to be "in personam", not contemplating that one might submit the dispute to a court of competent jurisdiction in another manner. Section 18 of the UDRP "Rules" at: https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en actually contemplate any type of dispute (could be in personam, could be in rem), using the phrase "any legal proceedings....in respect of a domain-name dispute". Thus, Option #6 is entirely consistent with the spirit and intent of the UDRP rules, and simply fixes language that was overly restrictive due to oversight by the drafters of the policy. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

2 3

Recordings, attendance & AC Chat for IGO-INGO Curative Rights Protection PDP WG call on Thursday, 30 November 2017 at 17:00 UTC
by Michelle DeSmyter Nov. 30, 2017

Nov. 30, 2017

Dear All, Please find the attendance and MP3 recording along with the AC recording and chat below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 30 November 2017 at 17:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-30nov17-en.mp3 AC Recording: https://participate.icann.org/p1xtx67mmzi/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page:https://gnso.icann.org/en/group-activities/calendar[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…> Attendees: George Kirikos Petter Rindforth Paul Tattersfield Philip Corwin Jay Chapman Zak Muscovitch Apologies: Paul Keating Mason Cole ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang Michelle DeSmyter ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki Agenda page: https://community.icann.org/x/ZQlyB Thank you. Kind regards, Michelle ------------------------------- Adobe Connect chat transcript for Thursday, 30 November 2017 Michelle DeSmyter:Dear All, Welcome to the IGO INGO Curative Rights Protection Mechanisms Working Group call on Thursday, 30 November 2017 at 17:00 UTC. Michelle DeSmyter:Agenda wiki page: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… George Kirikos:Hi folks. George Kirikos:(brb) George Kirikos:My Black Friday delivery just arrived via UPS. *happy camper* :-) Paul Tattersfield:Hello everyone George Kirikos:Welcome Paul. Paul Tattersfield:Thanks George, First snow here today and it's still November - just Michelle DeSmyter:Welcome Jay Michelle DeSmyter:no Jay Chapman:Thanks, Michelle George Kirikos:Welcome Zak! Zak Muscovitch:Many thanks, Phil. Glad to be here. Paul Tattersfield:Welcome Zak Zak Muscovitch:Many thanks, Paul and George George Kirikos:I submitted extensive comments last night at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000950.html George Kirikos:Recommendation #1 is fine for me.....the GNSO Council has basically already accepted it. George Kirikos:(given we went to them) Petter Rindforth:So: Consensus level: 100% George Kirikos:@Petter: Consensus is determined via the mailing list, right? Not in the live room, where only 6 of the 26 members are present. George Kirikos:Blue = new George Kirikos:Some text in black might actually need to have been blue, I believe (see my comments in that email). Mary Wong:@George, yes - there will be a formal consensus call that goes to the mailing list, to ensure all WG members can participate. It is rquired by the GNSO procedures. George Kirikos:Yep, I'm ready to jump in on #2. Jay Chapman:i can move from page to page, and can zoom, but cannot scroll the page - anyone else having this issue? George Kirikos:Jay: you can read it at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20171128/1d32bf… Mary Wong:@Jay, can you try exiting and reentering Adobe? George Kirikos:I can scroll fine. Jay Chapman:ok, i'll pull up the link George sent. Thanks, George George Kirikos:But, you can read it via that PDP (from the mailing list archives) George Kirikos:*PDF Jay Chapman:Got it - thanks George Kirikos:+1 Petter. It'll likely be 100%, for Rec #1. George Kirikos:That was my comment #5, via email. George Kirikos:Right, that was my comment #3. Paul Tattersfield:Good point George George Kirikos:I agree with the intent of the language ---- just want to make it clearest. Jay Chapman:Agree, the opening language w "elect" seems a little closer to standing being a done deal with the IGOs choice, as opposed to "evidence" in support of standing George Kirikos:Perhaps "attempt to demonstrate". Although, I think we should directly use the terms "evidence" vs "proof" somewhere. Zak Muscovitch:Could also add; "subjct to (a) through (c), below, an IGO may claim that it has standing to file a complaint...." George Kirikos:+1 Jay. Plus the word "fulfil" makes it seem like a done deal. Jay Chapman:Agree with inclusion of "evidence" Jay Chapman:Yes - agree with that too, George George Kirikos:This would also be the case on Page 5 of the document. George Kirikos:That makes sense, Mary. Petter Rindforth:"...providing evidence, for example, Article 6ter registration..." - something like that, perhaps George Kirikos:So, that section should be moved. George Kirikos:The note to the recommendation would likely end up elsewhere. George Kirikos:Now we jump to page 5? George Kirikos:To the middle of page 7. George Kirikos:Bottom of page 5 to middle of 7. Mary Wong:@George, yes, noted. Mary Wong:Done. Mary Wong:We will send the notes and any proposed updated language to the list, and like Phil has just said, nothing is set in stone until the Consensus Call. George Kirikos:Right, I thought it was just IGOs! Petter Rindforth:Agree, there is no reson to keep the reference ti INGOs George Kirikos:Here's our initial report: https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_issu… George Kirikos:It was Rec #5 before. And it did say INGOs. George Kirikos:Never caught that. George Kirikos:Because there are A LOT of INGOs (e.g. the ECOSOC list), and Red Cross, IOC and others would get the subsidy too. Paul Tattersfield:Good suggestion Petter George Kirikos:Also page 7. George Kirikos:Probably for the RPM PDP.....can we provide guidance to that group from our work? Mary Wong:@George, yes - for instance, this WG may write to that WG, though obviously whether it's considered and how is up to that WG. George Kirikos:We could conceivably refer those issues to the larger RPM working group, and defer to them. George Kirikos:+1 Phil George Kirikos:Especially since most of us are in both PDPs. Jay Chapman:agree Mary Wong:Probably not a new WG as the cost question isn't necessarily a policy question. George Kirikos:GAC has a budget, perhaps allocate it from their travel subdidies? :-) Paul Tattersfield:free mediation IGO names gets around the issue George Kirikos:+1 to the equal subdidization. George Kirikos:*subsidization, even George Kirikos:Next steps. George Kirikos:We have 3 calls in December, I think? George Kirikos:Although, is Hannukah going to affect any members? George Kirikos:Hanukkah, even. Dec 12 to 20. George Kirikos:RPM PDP has one on January 3rd. Mary Wong:We'll add the dates mentioned to the mailing list for everyone's reference as well. George Kirikos:Next ICANN meeting is 10-15 March 2018 Petter Rindforth:the time line seems convenient George Kirikos:The Ides of March?!?!?! :-) Mary Wong:So basically 3 meetings to complete deliberations, open Cosnensus Call by 21 Dec, close it on 10 Jan 2018, and send Final Report to Council on 20 Jan. George Kirikos:We don't have to review the professor's report. George Kirikos:If we missed the INGO stuff in Rec 5 (now Rec 4), could be other things like that. Zak Muscovitch:Immensely impressed by work you have been doing for so long and the professionalism which you have all exhibited. I am mindful that I am like the late dinner guest who comes just for dessert without brining a gift, but I look forward to further participation with you all. Jay Chapman:Thanks, all George Kirikos:Bye folks. Paul Tattersfield:Thanks all, bye Mary Wong:Thanks Phil, Petter and everyone!

1 0

Agenda and documents for Working Group call this Thursday
by Mary Wong Nov. 30, 2017

Nov. 30, 2017

Dear Working Group members, In view of the ongoing discussion relating to the final text and scope of Recommendation 3/Options A-C for our Final Report, the co-chairs would like to focus the Working Group call this week on those other recommendations for which there seem to be general agreement. As such, the proposed agenda for the call this week is: 1. Roll call/updates to Statements of Interest 2. Review/discussion of proposed final text for Recommendations 1, 2 & 4 3. Discussion of next steps for finalizing Recommendation 3 and timeline to completion of the Final Report For Agenda Item #2, staff has excerpted the proposed final text and related information for Recommendations 1, 2 & 4 in a separate document, attached – we have highlighted in blue those parts of the text that were either changed from or added to the text of our Initial Report. Please also note that Phil and Petter expect the call this week to last up to 60, as opposed to the scheduled 90, minutes. For your review and reference, we also attach the draft Final Report. This version is redlined from the Initial Report (showing all the changes and additions since the Initial Report was published, based on subsequent Working Group discussion and review of the public comments received), and has been reviewed by Petter and Phil. You’ll see that we have not inserted text for Recommendation 3 (pending further discussion by the Working Group) and there are also several comments and placeholders that will need to be addressed following additional Working Group input. Based on our consultations with Phil and Petter, staff expects that the Working Group will discuss the draft Final Report in the next couple of weeks. Thanks and cheers Mary

4 4

Re: [Gnso-igo-ingo-crp] Option #6 reminder
by Paul Keating Nov. 30, 2017

Nov. 30, 2017

Phil, While I agree that 4(k) is not well written, at least as concerns IGO/NGOs the issue of sov. Immunity waiver is limited to actions concerning the domain name. This has been upheld in several courts (limiting the nature of the claims) and most recently I have seen it in the Marchex decision in which the court limited the remedies sought by the plaintiff in a default action because the judge felt that the waiver only encompassed issues as to the control over the domain and did not include any right to damages thus treating the action as an ³in rem² action for all intents and purposes (in an In Rem action under the ACPA damages are prohibited). I attach the recommendation of the Magistrate which was adopted by the court. However, it is not possible for a losing Respondent to sue ³In Rem² unless the order has already been carried out by the registrar. The reason being that prior to domain transfer, the domain is still held by the respondent and thus any ³In Rem² action would be moot. I do agree that a change is required to 4(k) so as to increase the odds that a losing registrant may have their day in court. At present, courts have almost universally agreed that 4(k) merely allows one to file but doe snot itself create any form of underlying claim that is operative under the local laws of the selected jurisdiction. Thus, to survive a motion to dismiss the registrant must find a valid underlying claim upon which to base the action permitted by 4(k). In the US this is simple because of the ACPA. In other jurisdictions it is not so clear. I am addressing one in the EU and we are in part basing the claim upon the Human Rights Directive which is binding law in all EU member states. To make 4(k) really work, several things must be addressed, including IMHO, the following: 1. Clarify that the UDRP is NOT to be treated as an arbitration under relevant conventions 2. Clarify that in such an action the intention is to have a de novo proceeding not bound by the Panel Ruling 3. Expand the 10 business day rule so as to apply to any action brought in any court of mutual jurisdiction 4. Including in the MJ a forced choice for where the Registry resides 5. Including in the MJ a forced choice for where ICANN resides Paul From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of "Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp(a)icann.org> Reply-To: "Corwin, Philip" <pcorwin(a)verisign.com> Date: Tuesday, November 28, 2017 at 9:12 PM To: "icann(a)leap.com" <icann(a)leap.com>, "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] Option #6 reminder > George: > > This email is in my co-chair capacity. > > I have clicked on the pipermail link your provide and find this (excerpt) as > your proposal > > paragraph 4(k) of the rules: > > https://www.icann.org/resources/pages/policy-2012-02-25-en > > only specifically contemplates "in personam" court cases brought by > the UDRP respondent (domain owner) against the party who filed the > UDRP (i.e. the UDRP complainant). The relevant part of paragraph 4(k) > is: > > "We will then implement the decision unless we have received from you > during that ten (10) business day period official documentation (such > as a copy of a complaint, file-stamped by the clerk of the court) that > *****you have commenced a lawsuit against the complainant in a > jurisdiction to which the complainant has submitted****** under > Paragraph 3(b)(xiii) of the Rules of Procedure. " > > (emphasis added, via the asterisks) > > However, if the wording was changed very slightly, it would clarify > the situation with regards to "in rem" and/or "quasi in rem" suits, > i.e. the language in the asterisk section above could become: > > "you have commenced a lawsuit ***concerning the domain name**** in a > jurisdiction to which the complainant has submitted" > > i.e. by changing "against the complainant" to "concerning the domain > name", the latter language would cover not only in personam actions > brought against the UDRP complainant, but also cover both in rem and > quasi in rem actions too. > > [Aside: the language of the UDRP is actually very poorly worded; by > the language of 4(k) as it stands now, it doesn't even say that the > lawsuit against the UDRP complainant even needs to relate to the > domain name under dispute! i.e. you could sue for *any* cause of > action, even unrelated to the domain name, and by a strict reading of > the 4(k) language, the registrar has to not implement the decision! > We'll need to fix that in 2018 or 2019 or beyond, in the RPM working > group PDP...] (Emphasis added) > > I want to make sure that your proposal gets thorough review and fair > consideration. But the language you have proposed would apply to all UDRP > disputes, not just those in which an IGO was the Complainant, and as such is > beyond the scope of this WG¹s Charter (as you observe, this UDRP language can > be reviewed by the RPM Review WG when it reaches phase 2 of its effort). > > To cure that overbreadth, would it be possible for you to present your > proposed language as IGO-specific, either as an amendment to Option C as it > was presented in our preliminary consensus call, or as a free-standing option? > I think that would best assist the WG in fully considering it. > > Our likely agenda this week will be on portions of the draft final report on > which we have broad consensus, so you would have until at least next week > before this would be a germane topic for WG discussion. > > Thanks. > > Best regards, Philip > > Philip S. Corwin > Policy Counsel > VeriSign, Inc. > 12061 Bluemont Way > Reston, VA 20190 > 703-948-4648/Direct > 571-342-7489/Cell > > "Luck is the residue of design" -- Branch Rickey > > -----Original Message----- > From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf > Of George Kirikos > Sent: Monday, November 27, 2017 4:45 PM > To: gnso-igo-ingo-crp(a)icann.org > Subject: [EXTERNAL] [Gnso-igo-ingo-crp] Option #6 reminder > > At the last call, I was asked to resubmit Option #6 for discussion. > One can read the original proposal at: > > http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html > <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000811.html> > > Conceptually, it's very simple. While other options consider what to do if one > gets into the "special situation" we've discussed at length, this option is > different because it would reduce the number of those special situations, by > attempting to avoid the special situation entirely. > > The domain name owner mitigates the problem by suing "in rem" against the > domain name itself, where the IGO isn't a named defendant and thus can't > assert immunity at all. > > Option #6 simply modifies 4(k) of the policy, which currently requires that > the registrar should lock the domain name if a case is brought against the > UDRP complainant (i.e. "in personam"), to lock the domain name if any case is > brought concerning the domain name dispute (in rem or in personam). The only > effect of Option #6 is to require the locking in that situation (in rem suit) > --- a domain name owner could already sue in rem if they wanted to, but it's > uncertain whether or not a registrar would lock the domain name if they did > so. Option #6 removes that uncertainty. > > This would actually be consistent with the first part of 4(k), which didn't > specify that the case needed to be brought against the complainant, i.e it > only said: > > "The mandatory administrative proceeding requirements set forth in Paragraph 4 > shall not prevent either you or the complainant from submitting the dispute to > a court of competent jurisdiction for independent resolution before such > mandatory administrative proceeding is commenced or after such proceeding is > concluded." > > It was only later on that the language (sloppily, in my opinion) required it > to be "in personam", not contemplating that one might submit the dispute to a > court of competent jurisdiction in another manner. > > Section 18 of the UDRP "Rules" at: > > https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en > <https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en> > > actually contemplate any type of dispute (could be in personam, could be in > rem), using the phrase "any legal proceedings....in respect of a domain-name > dispute". > > Thus, Option #6 is entirely consistent with the spirit and intent of the UDRP > rules, and simply fixes language that was overly restrictive due to oversight > by the drafters of the policy. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ <http://www.leap.com/> > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org <mailto:Gnso-igo-ingo-crp@icann.org> > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp> > _______________________________________________ Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

2 1

Consolidated results of informal poll constituting preliminary consensus call on Options A-C
by Mary Wong Nov. 28, 2017

Nov. 28, 2017

Dear all, As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C. Individual Working Group members – especially those who provided specific comments as part of their poll response – are invited to add any relevant background and further thoughts to this email. Thanks and cheers Mary

7 15

Re: [Gnso-igo-ingo-crp] Arbitration costs would be HIGHER than court costs
by Paul Keating Nov. 22, 2017

Nov. 22, 2017

Phil, First, regarding costs of arbitration, the salient report was not about the ICANN arbitration but rather the filing fees and anticipated costs of using NAF, AAA and JAMS - all of whom have minimum fees plus additional fees based upon the ³value² of the dispute. So when speaking about a 3-letter domain name, the value will be high 5 to mid 6 figures. A substantial fee. Second, responding to your comments: > But the most salient point is that Option 3 does not compel the parties to > utilize arbitration as an alternative to judicial review; doing so requires > mutual consent. If either party feels that this route is more expensive than > judicial process or has other disadvantages it can withhold that consent. > PRK: If the arbitration process requires both parties to agree then it is an agreement to agree and is not enforceable against anyone. What benefit would this be to any party? What is the benefit of creating such a complex system? They can already call each other up and contractually agree to hold arbitration. > As for the availability of arbitration in the rare circumstance of an IGO > succeeding in its claim of immunity from judicial process, that provides a net > benefit to domain registrants compared to current policy by providing an > opportunity to get a determination on the merits under applicable national > law, an opportunity that is not available today in the same scenario. PRK: This ³net benefit² exists ONLY when a respondent is faced with a Mutual Jurisdiction whose courts do not recognize a cause of action the Respondent can plead. As noted, the MJ provision does not foreclose use of any otherwise appropriate jurisdiction. For the majority of domains (those run by Verisign) jurisdiction is per se existing in the US (that is where the domain registry - and thus the domain for in rem purposes - is located) and the ACPA grants a specific right of action. The only additional hurdle that a respondent would have to satisfy (if the US was not the stated MJ) would be to obtain a court order enjoining the transfer. This can be obtained ex-parte. And, even if not obtained, most registrant agreements state that receipt of a complaint will result in a lock on the domain which does not guaranty that the UDRP decision would not be enforced but adds some weight. Strong arguments can also be made for an order to reverse the UDRP decision during the litigation even if the transfer has taken place. As a final point, I note that the task of creating the applicable rules for any proposed arbitration process would be enormous and consume many hundreds of hours. I am sorry but I just do not see it. I fully understand the desire to create a result that the GAC and IGOs will accept. I understand that the Board may not accept a recommendation along the lines of our initial recommendation. But that is life as they say and I don¹t believe it is our task to presume a problem exists when neither the evidence nor applicable law shows that it does. And, our attempt to recommend changes to the UDRP based upon that presumed problem, I believe, goes beyond our mandate. Paul On 11/22/17, 6:32 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of gnso-igo-ingo-crp(a)icann.org> wrote: > Personal comments: > > I do not believe that the costs of an IRP seeking to overturn an ICANN Board > action, or an arbitration process concerning the complexities of an > employment discrimination case, are directly comparable to the narrower > issues at play in a post-UDRP appeal. > > As for consumer group critiques of arbitration clauses, they have been > subject to criticism on the basis of those entities receiving substantial > funding from the trial bar seeking to expand the ability to bring class > action litigation (I take no position on the merits of their conclusions, and > am equally > skeptical of industry studies claiming great benefits from compulsory > arbitration). > > But the most salient point is that Option 3 does not compel the parties to > utilize arbitration as an alternative to judicial review; doing so requires > mutual consent. If either party feels that this route is more expensive than > judicial process or has other disadvantages it can withhold that consent. > > As for the availability of arbitration in the rare circumstance of an IGO > succeeding in its claim of immunity from judicial process, that provides a net > benefit to domain registrants compared to current policy by providing an > opportunity to get a determination on the merits under applicable national > law, an opportunity that is not available today in the same scenario. > > -----Original Message----- > From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On > Behalf Of George Kirikos > Sent: Wednesday, November 22, 2017 8:41 AM > To: gnso-igo-ingo-crp(a)icann.org > Subject: [EXTERNAL] [Gnso-igo-ingo-crp] Arbitration costs would be HIGHER > than court costs > > Hi folks, > > I believe that the backers of Option #3 are incorrect to claim that > arbitration would be less expensive than the courts. > > I provided some preliminary discussion of this imporant point at the end of > a prior email at: > > http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000884.html > > "Costs -- it's naive to believe that costs would be lower in arbitration > than in a judicial case, while trying to emulate the due process protections > of a court. One need only look at a recent IRP that ICANN lost: > > http://domainincite.com/21481-icann-loses-another-irp-sport-gtld-fight-reope > ns-as-panel-finds-apparent-bias > > where the costs of the IRP itself (*not* counting lawyers fees of each > party) amounted to $152,673. In real courts, the actual disbursement costs > and filing fees are relatively low (hundreds of dollars, maybe thousands in > a complex case), because the most substantial cost, namely the labour cost > for the judge (their salary) is paid for by TAXPAYERS! Not so in an > arbitration, where the parties themselves have to pay for the costs of the > panelists (3 panelists, multiplied by hundreds of dollars per hour, > multiplied by many hours adds up quickly)." > > but wanted to have a focused discussion just on this point. > > Here are some additional references to consider (I saved the best for last, > since like the above it directly involved ICANN, so jump to the bottom if > you'd like): > > (1) http://www.lawmemo.com/arb/res/cost.htm > > "Here, Public Citizen presents the first comprehensive collection of > information on arbitration costs. We find: > > The cost to a plaintiff of initiating an arbitration is almost always higher > than the cost of instituting a lawsuit. Our comparison of court fees to the > fees charged by the three primary arbitration provider organizations > demonstrates that forum costs- the costs charged by the tribunal that will > decide the dispute- can be up to five thousand percent higher in arbitration > than in court litigation. These costs have a deterrent effect, often > preventing a claimant from even filing a case. > > Public Citizen's survey of costs finds that, for example, the forum fee for > a $60,000 employment discrimination claim in the Circuit Court of Cook > County, Illinois is $221. The forum fees for the same claim before the > National Arbitration Forum (NAF) would be $10,925, 4,943% higher. An $80,000 > consumer claim brought in Cook County would cost $221, versus $11,625 at > NAF, a 5,260% difference. These high costs are not restricted to NAF; for > the same $80,000 claim, the American Arbitration Association (AAA) would > charge the plaintiff up to $6,650, and Judicial Arbitration and Mediation > Services (JAMS) would charge up to $7,950, amounting to a 3,009% and 3,597% > difference in cost, respectively." > > (2) > https://m.mayerbrown.com/Files/News/04165fd5-5165-41ea-bb6f-19d9235c171d/Pre > sentation/NewsAttachment/7e531e5e-4040-4251-b1a8-1d4b6168c99b/Practice%20Not > e_Duncan_Pros-Cons-Arbitration_oct12.pdf > > "It is often said that arbitration is quicker and cheaper than litigation. > However, arbitrations may in certain cases actually be more protracted and > more expensive than litigation. There are numerous reasons for this, > including: - the additional costs payable in arbitration which are not > applicable in court proceedings. For example, the requirement to pay the > arbitrators' fees, any institutional administrative fees and to pay to hire > the hearing venue > - poorly drafted contracts with arbitration agreements which fail to provide > an adequate and practical framework for the conduct of the arbitration > proceedings - tribunals being unwilling to control the timetable and the > parties' conduct for fear of challenges to the subsequent award on the > grounds of unfairness Disputed enforcement proceedings (although this is an > area which various arbitral institutions are working hard to address, for > example with the new ICC Rules)" > > (3) > https://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/cost.ph > p > > "It is often thought that arbitrations are cheaper than court-based > litigation, because people may agree on a streamlined procedure and avoid > delays that may occur in the formal court process. > > However, an arbitration that is contested may turn out to be longer and more > expensive than going directly to court. The parties may end up in court > fighting about the arbitration as well as their original dispute." > > [George's note: Note, it's clear that for the case of an IGO dispute > involving a domain name owner, where it already went to UDRP, already fought > a battle re: "immunity", that it is a heavily contested case, so would very > likely end up being more costly than court due to the payment of the > arbitrators' fees (which are going to be triple in total due to the 3 person > panel).] > > (4) http://thefirmdubai.com/new/publicationdetails/114 > > "It is submitted that one of the first things to consider should be the > value of the contract and, more precisely, the amount that would be the > subject of a claim if a potential dispute arises. This is important because > arbitration costs and attorney fees for the same are usually much higher > than court fees and attorney fees for litigating the case. Dubai courts > (mainland courts) have a cap on their fees equivalent to AED 40,000 > regardless of the value of the claim, while there is no cap for arbitration > cases. By way of example, a claim with a value of AED 3 million before Dubai > courts (mainland courts) would not involve more than AED 40,000 of court > fees. However, the same-value arbitration would cost AED 130,000 before a > single arbitrator, and three times this amount (roughly AED 350,000) if the > contract provided for a three-arbitrator panel. Moreover, if you > successfully obtained the award, you would have to pay an additional AED > 40,000 by way of court fees to enforce the award. > > Furthermore, the number of panel arbitrators should be carefully considered > because the fees of an arbitration panel of three arbitrators will be three > times that of a sole arbitrator. Recently, a client, an international > supplier of building materials instructed our firm to commence proceedings > against a main contractor to claim an outstanding balance. Upon review of > the supply contract, we discovered the presence of a UNCITRAL arbitration > clause whereby any dispute was to be resolved through a panel of three > arbitrators. When informed of the estimate of arbitration and attorney fees, > the client's representative refused vehemently to proceed down that route > for economic reasons. In the words of the client's representative, the fees > were "exorbitant". However, luckily, after the client submitted to us > additional documents, we detected a loophole in the contract, which we used > to avoid the arbitration agreement. Hence, the decision was taken to bring > proceedings before the Dubai mainland court." > > [George's note: Of note, UNCITRAL rules have been brought up several times > in this PDP as potential rules to follow, and the above is a clear example > of parties to a dispute wanting to avoid their use because the costs would > be "exorbitant".] > > (5)(a) http://domainincite.com/4580-icann-tries-to-dodge-jobs-legal-fees > > "ICANN is still smarting from the last time it headed to arbitration, for > its Independent Review Panel over ICM Registry's .xxx top-level domain. > > ICANN lost that case in February 2010, and had to cover the panel's almost > $500,000 in costs, as well as its own legal fees. The overall price tag is > believed to have comfortably made it into seven figures." > > (5)(b) > https://www.thedomains.com/2010/02/20/report-finds-against-icann-in-denying- > the-xxx-extension-charges-them-the-475k-cost/ > > "Yesterday an independent panel, the International Centre For Dispute > Resolution (pdf) found in a 80 page decision, in favor of the ICM Registry > against ICANN for its decision to eventually reject the .xxx extension and > ruled that ICANN had to pick up all the costs of the independent panel to > the tune of $475K and reimburse ICM the fees it paid for the application to > the tune of another $241K. (ICM is stuck for its own attorney fees)." > > (5)(c) > https://www.icann.org/en/system/files/files/-panel-declaration-19feb10-en.pd > f > > "Therefore, the administrative fees and expenses of the International Centre > for Dispute Resolution, totaling $4,500.00, shall be borne entirely by > ICANN, and the compensation and expenses of the Independent Review Panel, > totaling $473,744.91, shall be borne entirely by ICANN. ICANN shall > accordingly reimburse ICM Registry with the sum of $241,372.46, representing > that portion of said fees and expenses in excess of the apportioned costs > previously incurred by ICM Registry." > > (from the full ICDR decision, costs on page 70) > > [George's note:] ICANN paid nearly $500,000 just to cover the IRP panel fees > in the .xxx arbitration (not counting its own legal fees)! > There's no court in the world where the court fees would ever amount to such > a high level for such a case (because, as I've noted earlier, it's the > taxpayers who pay the salaries of judges in court, whereas in arbitration > it's the parties who pay those steep costs). > > Thus, while arbitration is presented as a solution to improve access to > justice, it'd actually have the exact opposite effect, *increasing* the > barriers to justice due to the prohibitive costs involved. > Contested intellectual property disputes are by their very nature complex > compared to other litigation, and the costs would accordingly be high for an > arbitration where the parties have to pay the hourly fees of panelists. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp >

1 0

Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
by Paul Keating Nov. 22, 2017

Nov. 22, 2017

First I would like things to calm down here. Second, I want to address some comments by Phil indicating that having a rule that resulted in vitiating the UDRP decision if the IGO successfully sought dismissal on sovereign immunity grounds somehow treated them differently than other prevailing complainants in connection with post-UDRP litigation under 4(k). This is simply not what was, or continues to be, suggested. The rule is limited to the situation in which an IGO obtains dismissal as a result of a sovereign immunity claim. It does not vitiate the UDRP decision in any other instance (for example in the situation in which the court dismisses the litigation because tearer is no independent basis for a claim - e.g. The yoyo decision int ehUK). There appears to be a further myth that the Mutual Jurisdiction certification exposes them to judicial claims in connection with a 4(k) proceeding. This is simply not the case. As a case in point I refer to the attached case in which the following was stated: MARCHEX SALES, INC., v. TECNOLOGIA BANCARIA, S.A., IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Case 1:14-cv-01306-LO-JFA Document 17 Filed 05/21/15 > In filing its UDRP complaint, Tecnologia agreed that it would "submit, with > respect to > any challenges that may be made by the Respondent to a decision by the > Administrative Panel to > transfer the domain name that is the subject of this Complaint, to the > jurisdiction of the courts at > the location of the principal office of the concerned registrar." (Compl. ~ > 16). Plaintiff alleges > that this court has personal jurisdiction over the defendant because of this > agreement "to submit > to jurisdiction of the registrar in connection with a challenge of a UDRP > decision ordering a > transfer of the Domain Names." (Compl. ~ 3). > > While it is clear that the defendant has consented to the jurisdiction of this > court for the > purposes of challenging the WIPO panel's decision to transfer the subject > domain names in the > "Mutual Jurisdiction" clause of the UDRP complaint (Com pl. ~ 16), the relief > sought by the > plaintiff in the complaint before this court and in the motion for default > judgment goes far > beyond a "challenge" of the WIPO panel's decision. Plaintiff is not only > seeking a declaration > that its registration and use of the subject domain names is lawful and proper > and the domain > names should not be transferred to the defendant as ordered by the WIPO panel, > it is also seeking > an award of damages and attorney's and costs under the Lanham Act.3 > > As discussed during the hearing on May I, 2015, plaintiff has not alleged any > facts that > would support a finding of personal jurisdiction over this foreign defendant > for claims other than > a direct challenge to the WIPO panel's decision to transfer the domain names- > the only claim > that the defendant agreed to have litigated in this forum. To allow claims > other a challenge to > whether a domain name should be transferred in accordance with a WIPO decision > to be brought > against a complainant in a WIPO proceeding based on the mandatory provision > that the > complainant submit to jurisdiction of the courts at the location of the > principal registrar of the > domain name would greatly and unfairly expand the scope of the agreement and > the exposure > that any complainant could face by filing a UDRP complaint. > > The United States Supreme Court has consistently held that "a party can be > forced to > arbitrate only those issues it specifically agreed to submit to arbitration." > First Options of > Chicago, Inc. v. Kaplan, 514 U.S. 938, 945 (1995). The Fourth Circuit has also > recognized that > whether a party has agreed to arbitrate an issue is a matter of contract > interpretation and that a > party cannot be required to submit to arbitration any dispute which he has not > agreed so to > submit. Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, > 92 (4th Cir. > 1996) (quoting United Steelworkers of Am. v. Warrior Gulf Navigation Co., 363 > U.S. 574, 582 > (1960)). In a similar vein, the UDRP requires the parties to submit to > arbitration only claims > concerning the registration of a domain name and a party to a "mutual > jurisdiction" clause like > the one required in the UDRP complaint should not be forced to submit to the > jurisdiction of a > foreign forum for any claims that it has not agreed to submit. In the mutual > jurisdiction clause > relied on by the plaintiff, the agreement is limited to a challenge of a > decision to the transfer of > the domain name. It is not a broadly worded agreement whereby the complainant > agrees to a > specific jurisdiction for the resolution of all claims between the parties to > be litigated, or even an > agreement that all claims arising out of or related to the UDRP complaint to > be litigated in the > forum. The language is specific; it involves only a challenge to a panel's > decision to transfer a > domain name. To find that such a provision would subject a party to anything > more than a > challenge to the panel's decision would be unfair and would be inconsistent > with the due process > clause of the U.S. Constitution. While it was not required to address the > issue directly, in a > similar action the Fourth Circuit has recognized the argument made by a > defendant that a court > lacks jurisdiction regarding any cause of action other than the challenge to > the panel's decision in > the UDRP proceeding. Barcelona.com, 330 F.3d at 623. > > For these reasons, the undersigned magistrate judge recommends a finding that > the court > has subject matter jurisdiction over this action, that the court has > jurisdiction over only the claim > concerning the challenge to the WIPO panel's decision, and that venue is > proper in this court for > that claim. The court went on to disallow any damage claims - limiting its decision only to a transfer and award of costs. I continue to STRENUOUSLY oppose any creation of a special system for IGOs (or others) and incorporate my prior email on this subject which set forth the lack of any evidence of problem with the existing system. I believe no action is required as we set forth in the initial report. As the only compromise, I will only support a proposed change that incorporates the following within the UDRP which would be a part of the certification to be agreed to by the Complainant. If Complainant is an NGO, then Complainant further certifies and agrees In the event of any post-UDRP litigation brought by a respondent concerning the domain name > The NGO successfully seeks dismissal on the basis of sovereign immunity > And the litigation is dismissed as a result of the granting of the NGO¹s > motion to dismiss > The UDRP decision will be vitiated. Again, this applies in a very limited number of possible situations involving only NGOs and only then when the case is dismissed because the NGO asserted sovereign immunity. Paul Keating On 11/17/17, 8:26 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of gnso-igo-ingo-crp(a)icann.org> wrote: > George: > > This co-chair categorically reject your reckless charge that I have engaged in > "fear-mongering". > > I regard that as a personal affront. You really should apologize. > > Please stick to the substance ands stop making reckless and unfounded > allegations about others' motivations. > > As for revelation of how any member voted on our preliminary consensus call, > those members who wish to reveal how they marked their ballots are free to do > so -- but we will not violate reasonable expectations of privacy, especially > when it now clear that support for Option C can expose one to reckless > charges. > > Philip > > -----Original Message----- > From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf > Of George Kirikos > Sent: Friday, November 17, 2017 2:17 PM > To: gnso-igo-ingo-crp(a)icann.org > Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal > poll constituting preliminary consensus call on Options A-C > > I think the comments within this survey are quite telling. Those who are in > favour of option A (and opposing option C) have very strong and fully > considered views, which they can explain and support with facts and reasoning. > Compare that to those expressing support for C (and opposing A/B). They make > statements like: > > "Fair and balanced" (supporting C) > "DOA at Council" (opposing A) > > bereft of credible reasoning. > > This demonstrates that it's fear-mongering by the co-chairs and political > motivations that led some to switch from Option 1 (now Option A) to Option C > (formerly Option 2), rather than anything based on new facts or new analysis. > Given this, it explains the refusal by the co-chairs to attach names to those > who are supporting Option C -- there's no expectation of privacy here --- > everyone must vote publicly when it comes down to a final consensus call, and > should have been able to publicly explain why they supported Option C in this > preliminary survey. > > In the book "Principles" by Ray Dalio that I'm reading, he writes about how > decisions at Bridgewater go through what's called "believability-weighted > decision making", see some discussion of that > at: > > http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 > > I think that is a wise approach, whereby votes that are backed by sound logic, > facts, experience, and reasoning should be weighted much higher than votes > that lack those attributes and which are instead fear-driven and thus are not > believable. > > It's been said that "One man with courage makes a majority." Hopefully it does > not have to come to that. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > > > > > > > > > > > > > > > On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong(a)icann.org> wrote: >> Dear all, >> >> >> >> As noted on the Working Group call yesterday, please find attached the >> consolidated results of the informal poll that was conducted regarding >> Working Group member preferences as among Options A, B and C. >> >> >> >> Individual Working Group members especially those who provided >> specific comments as part of their poll response are invited to add >> any relevant background and further thoughts to this email. >> >> >> >> Thanks and cheers >> >> Mary >> >> >> _______________________________________________ >> Gnso-igo-ingo-crp mailing list >> Gnso-igo-ingo-crp(a)icann.org >> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

2 3

Arbitration costs would be HIGHER than court costs
by George Kirikos Nov. 22, 2017

Nov. 22, 2017

Hi folks, I believe that the backers of Option #3 are incorrect to claim that arbitration would be less expensive than the courts. I provided some preliminary discussion of this imporant point at the end of a prior email at: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-October/000884.html "Costs -- it's naive to believe that costs would be lower in arbitration than in a judicial case, while trying to emulate the due process protections of a court. One need only look at a recent IRP that ICANN lost: http://domainincite.com/21481-icann-loses-another-irp-sport-gtld-fight-reop… where the costs of the IRP itself (*not* counting lawyers fees of each party) amounted to $152,673. In real courts, the actual disbursement costs and filing fees are relatively low (hundreds of dollars, maybe thousands in a complex case), because the most substantial cost, namely the labour cost for the judge (their salary) is paid for by TAXPAYERS! Not so in an arbitration, where the parties themselves have to pay for the costs of the panelists (3 panelists, multiplied by hundreds of dollars per hour, multiplied by many hours adds up quickly)." but wanted to have a focused discussion just on this point. Here are some additional references to consider (I saved the best for last, since like the above it directly involved ICANN, so jump to the bottom if you'd like): (1) http://www.lawmemo.com/arb/res/cost.htm "Here, Public Citizen presents the first comprehensive collection of information on arbitration costs. We find: The cost to a plaintiff of initiating an arbitration is almost always higher than the cost of instituting a lawsuit. Our comparison of court fees to the fees charged by the three primary arbitration provider organizations demonstrates that forum costs- the costs charged by the tribunal that will decide the dispute- can be up to five thousand percent higher in arbitration than in court litigation. These costs have a deterrent effect, often preventing a claimant from even filing a case. Public Citizen's survey of costs finds that, for example, the forum fee for a $60,000 employment discrimination claim in the Circuit Court of Cook County, Illinois is $221. The forum fees for the same claim before the National Arbitration Forum (NAF) would be $10,925, 4,943% higher. An $80,000 consumer claim brought in Cook County would cost $221, versus $11,625 at NAF, a 5,260% difference. These high costs are not restricted to NAF; for the same $80,000 claim, the American Arbitration Association (AAA) would charge the plaintiff up to $6,650, and Judicial Arbitration and Mediation Services (JAMS) would charge up to $7,950, amounting to a 3,009% and 3,597% difference in cost, respectively." (2) https://m.mayerbrown.com/Files/News/04165fd5-5165-41ea-bb6f-19d9235c171d/Pr… "It is often said that arbitration is quicker and cheaper than litigation. However, arbitrations may in certain cases actually be more protracted and more expensive than litigation. There are numerous reasons for this, including: - the additional costs payable in arbitration which are not applicable in court proceedings. For example, the requirement to pay the arbitrators’ fees, any institutional administrative fees and to pay to hire the hearing venue - poorly drafted contracts with arbitration agreements which fail to provide an adequate and practical framework for the conduct of the arbitration proceedings - tribunals being unwilling to control the timetable and the parties’ conduct for fear of challenges to the subsequent award on the grounds of unfairness Disputed enforcement proceedings (although this is an area which various arbitral institutions are working hard to address, for example with the new ICC Rules)" (3) https://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/cost.p… "It is often thought that arbitrations are cheaper than court-based litigation, because people may agree on a streamlined procedure and avoid delays that may occur in the formal court process. However, an arbitration that is contested may turn out to be longer and more expensive than going directly to court. The parties may end up in court fighting about the arbitration as well as their original dispute." [George's note: Note, it's clear that for the case of an IGO dispute involving a domain name owner, where it already went to UDRP, already fought a battle re: "immunity", that it is a heavily contested case, so would very likely end up being more costly than court due to the payment of the arbitrators' fees (which are going to be triple in total due to the 3 person panel).] (4) http://thefirmdubai.com/new/publicationdetails/114 "It is submitted that one of the first things to consider should be the value of the contract and, more precisely, the amount that would be the subject of a claim if a potential dispute arises. This is important because arbitration costs and attorney fees for the same are usually much higher than court fees and attorney fees for litigating the case. Dubai courts (mainland courts) have a cap on their fees equivalent to AED 40,000 regardless of the value of the claim, while there is no cap for arbitration cases. By way of example, a claim with a value of AED 3 million before Dubai courts (mainland courts) would not involve more than AED 40,000 of court fees. However, the same-value arbitration would cost AED 130,000 before a single arbitrator, and three times this amount (roughly AED 350,000) if the contract provided for a three-arbitrator panel. Moreover, if you successfully obtained the award, you would have to pay an additional AED 40,000 by way of court fees to enforce the award. Furthermore, the number of panel arbitrators should be carefully considered because the fees of an arbitration panel of three arbitrators will be three times that of a sole arbitrator. Recently, a client, an international supplier of building materials instructed our firm to commence proceedings against a main contractor to claim an outstanding balance. Upon review of the supply contract, we discovered the presence of a UNCITRAL arbitration clause whereby any dispute was to be resolved through a panel of three arbitrators. When informed of the estimate of arbitration and attorney fees, the client’s representative refused vehemently to proceed down that route for economic reasons. In the words of the client’s representative, the fees were “exorbitant”. However, luckily, after the client submitted to us additional documents, we detected a loophole in the contract, which we used to avoid the arbitration agreement. Hence, the decision was taken to bring proceedings before the Dubai mainland court." [George's note: Of note, UNCITRAL rules have been brought up several times in this PDP as potential rules to follow, and the above is a clear example of parties to a dispute wanting to avoid their use because the costs would be "exorbitant".] (5)(a) http://domainincite.com/4580-icann-tries-to-dodge-jobs-legal-fees "ICANN is still smarting from the last time it headed to arbitration, for its Independent Review Panel over ICM Registry’s .xxx top-level domain. ICANN lost that case in February 2010, and had to cover the panel’s almost $500,000 in costs, as well as its own legal fees. The overall price tag is believed to have comfortably made it into seven figures." (5)(b) https://www.thedomains.com/2010/02/20/report-finds-against-icann-in-denying… "Yesterday an independent panel, the International Centre For Dispute Resolution (pdf) found in a 80 page decision, in favor of the ICM Registry against ICANN for its decision to eventually reject the .xxx extension and ruled that ICANN had to pick up all the costs of the independent panel to the tune of $475K and reimburse ICM the fees it paid for the application to the tune of another $241K. (ICM is stuck for its own attorney fees)." (5)(c) https://www.icann.org/en/system/files/files/-panel-declaration-19feb10-en.p… "Therefore, the administrative fees and expenses of the International Centre for Dispute Resolution, totaling $4,500.00, shall be borne entirely by ICANN, and the compensation and expenses of the Independent Review Panel, totaling $473,744.91, shall be borne entirely by ICANN. ICANN shall accordingly reimburse ICM Registry with the sum of $241,372.46, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by ICM Registry." (from the full ICDR decision, costs on page 70) [George's note:] ICANN paid nearly $500,000 just to cover the IRP panel fees in the .xxx arbitration (not counting its own legal fees)! There's no court in the world where the court fees would ever amount to such a high level for such a case (because, as I've noted earlier, it's the taxpayers who pay the salaries of judges in court, whereas in arbitration it's the parties who pay those steep costs). Thus, while arbitration is presented as a solution to improve access to justice, it'd actually have the exact opposite effect, *increasing* the barriers to justice due to the prohibitive costs involved. Contested intellectual property disputes are by their very nature complex compared to other litigation, and the costs would accordingly be high for an arbitration where the parties have to pay the hourly fees of panelists. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

3 3

Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
by Corwin, Philip Nov. 20, 2017

Nov. 20, 2017

George: This co-chair categorically reject your reckless charge that I have engaged in "fear-mongering". I regard that as a personal affront. You really should apologize. Please stick to the substance ands stop making reckless and unfounded allegations about others' motivations. As for revelation of how any member voted on our preliminary consensus call, those members who wish to reveal how they marked their ballots are free to do so -- but we will not violate reasonable expectations of privacy, especially when it now clear that support for Option C can expose one to reckless charges. Philip -----Original Message----- From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Friday, November 17, 2017 2:17 PM To: gnso-igo-ingo-crp(a)icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like: "Fair and balanced" (supporting C) "DOA at Council" (opposing A) bereft of credible reasoning. This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey. In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at: http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9 I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable. It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong(a)icann.org> wrote: > Dear all, > > > > As noted on the Working Group call yesterday, please find attached the > consolidated results of the informal poll that was conducted regarding > Working Group member preferences as among Options A, B and C. > > > > Individual Working Group members – especially those who provided > specific comments as part of their poll response – are invited to add > any relevant background and further thoughts to this email. > > > > Thanks and cheers > > Mary > > > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp(a)icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

2 6

Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working Group meeting on Thursday 27 July
by George Kirikos Nov. 20, 2017

Nov. 20, 2017

That post makes absolutely no sense, and is inconsistent with the idea that we've even identified an issue at all that needs remediation. If, as Phil claims, we need to take 4(k) as is, then that argues for *not* implementing Option C (or Option 2 by the old numbering), because that would be singling out the IGO for a further round of arbitration, to their detriment. (as is, the dispute would be over, and the IGO would get the domain name; why subject them to a further procedure which they may lose? and even if the IGO won, they'd be spending more time and money to do it) I made a post on the RPM PDP mailing list yesterday that raises the very closely related issue of having the "de novo review" struck for lack of cause of action in some jurisdictions, see: http://mm.icann.org/pipermail/gnso-rpm-wg/2017-November/002585.html which identified the root cause of the problem, namely that: "If there was no URS (or UDRP) policy in place what would be the "law" and the procedural path to justice? Clearly, a trademark holder would have a "cause of action" under trademark law against a domain name registrant. The TM holder would file a lawsuit (as plaintiff) against the domain name registrant (as defendant). With the URS (or UDRP), the procedural path to justice is altered in the event a TM holder uses it and is successful under the ADR. To challenge the outcome of the ADR, the domain name registrant now has the role of the plaintiff in court, and the TM holder is the defendant. The parties have switched their prior positions as plaintiffs and defendants, and it turns out that might cause a significant problem in some jurisdictions. i.e. it might make a difference which party to the dispute files in court as plaintiff in some jurisdictions." Where Phil is coming from, he's saying "Take the UDRP as given, and AFTER that procedure is applied, leave the determination of legal rights and defenses to national law and courts of mutual jurisdiction." Whereas those of us who are convinced Option A (or Option 1 under the old numbering) is correct, we're saying "We do not take the UDRP as given! ICANN can't create a policy that interferes with the legal rights and defenses to national law in the first place. And the UDRP as written has already done that, caused that interference." If you actually believe what Phil is saying, then this PDP should be arguing for maintaining the status quo, i.e. don't change anything at all. That would be the only position that isn't hypocritical. But, this workgroup does not actually believe that --- because it's already said there is a scenario that had not been contemplated by the UDRP. It has identified a flaw that needs to be fixed, because of that "procedural path to justice" being changed as I noted above. We're not singling out IGOs --- the same issue needs to be fixed in the RPM PDP, where "de novo review" on the merits is blocked by the courts if the court action is brought by a domain name registrant in certain jurisdictions, due to false assumptions when the UDRP/URS were created that a cause of action even existed if the domain name registrant was the plaintiff (as opposed to being a defendant who did have a valid defense to a TM infringement action). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Mon, Nov 20, 2017 at 10:29 AM, Phil Corwin <psc(a)vlaw-dc.com> wrote: > These are personal comments and not directives or rulings from the Co-Chair. > > > The PDP Working Group is part of a policy process. After a WG delivers its > Final Report and Recommendations the process continues, with the output > requiring further approval of the GNSO Council and then the ICANN Board to > be effectuated (and with the Board possibly having to consider contrary, > consensus GAC advice when making its own determination). If those subsequent > approvals are not obtained the entire effort of the WG is for naught. It is > not "playing politics" for a WG to consider whether its final > recommendations will pass muster at the next stages of process review, and > policymaking is always the art of the possible and often requires pragmatic > compromise. > > > My own evolution in thinking on Option 1/A (and I don't believe I ever > expressed a preference for that over Option 2/C at the time our Initial > report was released) was in part based upon a further understanding that 4k > of the UDRP https://www.icann.org/resources/pages/policy-2012-02-25-en > states: > > > k. Availability of Court Proceedings. The mandatory administrative > proceeding requirements set forth in Paragraph 4 shall not prevent either > you or the complainant from submitting the dispute to a court of competent > jurisdiction for independent resolution before such mandatory administrative > proceeding is commenced or after such proceeding is concluded. If an > Administrative Panel decides that your domain name registration should be > canceled or transferred, we will wait ten (10) business days (as observed in > the location of our principal office) after we are informed by the > applicable Provider of the Administrative Panel's decision before > implementing that decision. We will then implement the decision unless we > have received from you during that ten (10) business day period official > documentation (such as a copy of a complaint, file-stamped by the clerk of > the court) that you have commenced a lawsuit against the complainant in a > jurisdiction to which the complainant has submitted under Paragraph > 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is > either the location of our principal office or of your address as shown in > our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of > Procedure for details.) If we receive such documentation within the ten (10) > business day period, we will not implement the Administrative Panel's > decision, and we will take no further action, until we receive (i) evidence > satisfactory to us of a resolution between the parties; (ii) evidence > satisfactory to us that your lawsuit has been dismissed or withdrawn; or > (iii) a copy of an order from such court dismissing your lawsuit or ordering > that you do not have the right to continue to use your domain name. > (Emphasis added) > > > That language made clear to me that Option 1/A would single IGOs out for > disparate treatment in the UDRP in that, were any other Complainant > successful in having a registrant's lawsuit dismissed for any valid reason, > the stay on the implementation of the Administrative Panel's decision to > extinguish or transfer the domain would be lifted and the decision would be > effectuated; whereas that Option would state that for IGOs, and IGOs alone, > the decision would be vitiated. > > > My view is that for that disparate treatment alone the Council and Board > would be highly likely to reject a report and recommendations containing > such a policy recommendation. Additional reasons why I cannot support it > are: > > Such a recommendation is at odds with the WG Charter's charge that we ensure > that IGOs have effective access to CRP > The effect of the recommendation would be to penalize IGOs for effectively > asserting an immunity defense in judicial proceedings, as the result would > be to set aside a prior determination that the domain was being used to > facilitate cybersquatting (and yes, I know that in some instances UDRP > decisions are in error and are set aside on judicial appeal; but in the > great majority of cases the original panel decision is correct) and that > this result would likewise be unacceptable to Council and the Board. It > would also be inconsistent with the WG's prior determination that ICANN > should not interfere with the legal rights of either party to a UDRP, and > should leave judicial determinations to the courts. > The recommendation might well incentivize losing domain registrants to file > judicial appeal in a belief that an IGO - faced with the choice between > acquiescing to the court's jurisdiction, or asserting an immunity defense > the successful invocation of which would be penalized by panel determination > vitiation -- would choose to not participate in the adjudication and thereby > provide the registrant with a default judgment in its favor. > > > Please note that all these reasons (which I have articulated previously in > both oral and written form) are based on law, policy, and pragmatic > policymaking considerations and that none constitute "fear mongering". > > > The positive reasons why I personally support Option 2/C are that: > > It is consistent with the WG's determination to leave the determination of > legal rights and defenses to national law and courts of mutual jurisdiction. > It does nothing to improve or detract from an IGO's ability to successfully > assert and immunity defense. > It improves the position of domain registrants by assuring that in those > rare instances in which a court grants an IGO's immunity claim and dismisses > the judicial action they still will have an ability to secure a de novo > determination from an expert and impartial panel based upon the same > national law that was the basis for the judicial action. Under current UDRP > policy, the judicial dismissal would leave the registrant with no further > recourse for "appeal". > > > Finally, let me be clear that my views on this matter have never been > motivated by a desire to acquiesce to the GAC's. I believe that if Option > 2/C is included in our final report and if GAC members actually give a fair > reading to it they will conclude that this recommendation is based upon > reasoned principles that deserve GAC support. However, I have never favored > the consistent GAC position on this matter -- that we should create separate > CRP processes for IGOs in which domain registrants are deprived of an > opportunity to secure judicial review - as we have found no basis for IGOs > to secure standing for such actions other than trademark law, and because it > would be an abuse of ICANN's limited remit for it to attempt to deprive > registrants of existing legal rights based upon the type of Complainant > initiating a CRP action. > > > Best to all, > > Philip > > > > > Philip S. Corwin > > Founding Principal > > Virtualaw LLC > > 1155 F Street, NW > > 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: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of > George Kirikos <icann(a)leap.com> > Sent: Thursday, November 16, 2017 1:27 PM > To: gnso-igo-ingo-crp(a)icann.org > Subject: Re: [Gnso-igo-ingo-crp] Proposed agenda and documents for Working > Group meeting on Thursday 27 July > > Hi folks, > > On Thu, Nov 16, 2017 at 12:24 PM, Mike Rodenbaugh <mike(a)rodenbaugh.com> > wrote: >> I completely agree with Paul on this. These IGO names issues have been a >> political football for nearly five years now. The GAC is never going to get >> the GNSO to say what the GAC wants it to say -- we are not going to agree. >> The GAC has never proved any legitimate public interest concern to back >> their position. Accordingly, the IGO names policy was passed by a >> supermajority of the GNSO (as likely will be this latest policy >> recommendation) and that has implications in the Bylaws for the Board. The >> Board needs to make a decision. The GNSO need not be interested in >> politics, that is the Board and GAC's concern; we are interested in facts >> and real world policy. > > Yet, the backers of Option C within this PDP have *also* been playing > politics. It was pretty much established that Option 1 (now Option A) > had the backing of this PDP when the preliminary report went out > earlier this year, as I pointed out in today's call, based on all the > analysis of law and facts. What "new information" or "new facts" or > "new analysis" have been presented to get some members of this PDP to > shift to the old Option 2 (now Option C)? Absolutely none -- just > scaremongering about how the GNSO Council or others might react ---- > *that's* politics. There's nothing "principles based" about Option C > that has anything to do with facts or law. > > Politics were being played even *before* we got to this PDP. The prior > PDP should have just said "No more", but then they kicked the can down > the road (leading to this 3 years of work), which the IGOs themselves > have not participated in. > > I hope that folks regain their bearings before this PDP is over, and > really think hard about the fundamental principles that lead to policy > decisions (I've been reading Ray Dalio's new book "Principles" > lately). > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > > Leap of Faith Financial Services Inc. > www.leap.com > Leap of Faith Financial Services Inc. is a privately held company based in > Toronto, Canada. > > > > _______________________________________________ > Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

2 2