December 2017 - Gnso-igo-ingo-crp

My personal comments on our time frame and continous adding of new proposals
by Petter Rindforth Dec. 19, 2017

Dec. 19, 2017

Dear members of our WG, Just a few personal comments, as I can fully understand that it sometimes may be hard to remember all steps, discussions and decisions we have made together since our first meeting in August 11, 2014. As you all know, we have deeply discussed all possible variations during our WG calls, and also already at ICANN52 in Singapore, at February 13, 2015 had a full day F2F meeting (from 9.30 – 17.15), including 75 minutes discussion based on George Kirikos suggestion regarding possible “mechanics” for IGO filing.At April 29, 2015, we received the GAC reply to a number of questions we had sent to them. As to Question 3: “In opposing [amendments to the UDRP and URS] does the GAC thus advise the GNSO to preclude any possible change to its “Mutual Jurisdiction” provisions to address specific sovereign immunity concerns of IGOs? How should a curative rights process appropriately deal with this problem while also ensuring adequate due process protections for registrants?”, GAC replied that: “The GAC notes that the IGOs, in their communication to you of 16 January 2015, have advised that they consider their claimed immunity from national jurisdiction to be fundamental to their role as international bodies. There are non-judicial means to ensure due process, such as arbitration, which the GAC believes should be considered in more detail.” At February 20, 2016, we still had the goal to present our Initial Report prior to ICANN55 in Marrakech (March 5 – 10, 2016…) The Timeline was discussed and updated at our August 4, 2016 meeting:Month of August 2016(after 4 August WG call) – straw poll of members on elements to be addressed in a draft Initial Report; staff preparation of outline of report with those elements 1 & 8 September– discuss outline and elements; staff to begin filling out draft Initial Report 15 & 22 September– discuss preliminary conclusions 30 September– staff to prepare and circulate draft Initial Report 6, 13, 20 October– discuss Initial Report 24 October– publish Initial Report for public comment Early November (ICANN57)– present conclusions in Initial Report for community discussionMid-end November– begin discussion of community feedback and public comments received 3 December– public comment forum closes; staff to prepare summary and Public Comment Review Tool 8 & 15 December– continue discussions of public comments received (no meeting on 22 or 29 December) 5 & 12 January 2017– continue discussion of public comments received; determine if preliminary conclusions and any open questions need to be updated; staff to prepare draft Final Report 19 & 26 January– discuss final recommendations; staff to circulate draft Final Report by end-January 2 February– discuss Final Report 6 February- commence formal consensus call 9 & 16 February(only if needed) – WG meeting 20 February– conclude formal consensus call 27 February 2017– sign off on Final Report; chairs to submit Final Report to GNSO Council On our meetings in December 2016 – January 2017, we deeply discussed our Initial Report, and fully agreed to ask for comments on 2 options: Where an IGO succeeds in asserting its claim of jurisdictional immunity in a court of mutual jurisdiction, the Working Group recommends that in that case:Option 1- the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated; or Option 2– the decision rendered against the registrant in the predecessor UDRP or URS may be brought before the [name of arbitration entity] for de novo review and determination. Among the comments received, apart from IGO’s, there were also comments from Stakeholder Groups and Constituencies, as well as from individuals (members of our WG), meaning that everyone had the possibility to comment and adding new proposals, for further discussion in our WG. We discussed the public comments received on our meetings at March 30, April 6, April 13, April 20, April 27, May 4, May 11, 2017At the May 4 meeting it was noticed a comment from some IGO.s (OECD, UN, UPU, WHO & WIPO), on the time frame, based on a discussion of it was need to have another external legal advice on Article 6ter: “IGO colleagues share the OECD’s concern that such an exercise will significantly prolong what has already been an extensive and resource-intensive process”, meaning that also IGO representatives wanted to have a result/decision of our work without further delays. At July 13, 2017, we still discussed the 2 options (Options 1 & 2 for Recommendation #4) On our July 20, call, we discussed three new options: OPTION 3 TO RECOMMENDATION #4 Suggested by Paul Keating on the Working Group call of 15 June 2017):<https://community.icann.org/x/SEfwAw>OPTION 4 TO RECOMMENDATION #4 Suggested by George Kirikos via email to the mailing list on 27 June 2017):<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-June/000769.html> ALTERNATIVE PROPOSAL: >From Paul Keating, via email to the mailing list, 14 July 2017:<http://mm.icann.org/pipermail/gnso-igoingo-crp/2017-July/000784.html>These were further discussed on July 27, August 3 (Options 3, 4, 5, 6), and September 7 (Options 1, 2, 3, 4, 5, 6) It is also noted that on July 26, we discussed and agreed upon a new draft timeline for completion of our WG, with December 7, 2017 for our WG to Finalize Report, and noting that December 11, 2017 was a Document deadline for GNSO Council December meeting (either submit Final Report here, or if more time is needed, aim to submit for GNSO Council meeting in January 2018). On our September 26, 2017 meeting, we agreed on Option A, B and C, which was further discussed on October 5, in preparation for a Surveyto detect consensus on Options A, B or C. At our December 7, 2017 call, we discussed Options A, B, C and George Kirikos Option 6. At our December 14 call we hadthree additional proposals (as well as A, B, C): from Zak Muscovitch, George Kirikos and Paul Tattersfield respectively, that were discussed. To summarize: I think it is clear to all of us, that we have discussed our topic/s deeply for a long time. I also think it is clear that some WG members support A, where other WG members support C (including myself). Continuously adding new proposals at the last minute, and thereby arguing that our topics have not already been fully discussed, will not change that fact. I deeply respect the knowledge and experience of all my fellow WG members, and that is why I also hope that all of you agrees that the reason why we actively join a WG is to find a solution and recommendation on specific topic/s (and keeping the time frame), rather than conclude that we shall refrain fromtaking our responsibility and instead transfer the subject to another working group. All the best, Petter -- Petter Rindforth, LL M Fenix Legal KB Stureplan 4c, 4tr 114 35 Stockholm Sweden Fax: +46(0)8-4631010 Direct phone: +46(0)702-369360 E-mail: petter.rindforth(a)fenixlegal.eu www.fenixlegal.eu NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you

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Precedent within ICANN -- another PDP's approach to polls -- no anonymity
by George Kirikos Dec. 19, 2017

Dec. 19, 2017

Hi folks, The post at: http://mm.icann.org/pipermail/gnso-rds-pdp-wg/2017-February/002167.html establishes why polls, if used, must not be anonymous. Here's the salient point: "While some WG members may not be fully comfortable with inclusion of WG names and timestamps in future poll results, the leadership team believes this decision reflects the majority desire for complete transparency in all WG deliberations- including these informal polls - and aligns with the GNSO Working Group Guidelines principles of transparency and accountability. As stated previously, member responses to these informal polls are assumed to be provided in their individual capacity and not as representative of any groups to which they belong." Given that the RDS PDP is one of the largest and most divided PDP, it's worth noting that the responses to that post were ALL positive! See: http://mm.icann.org/pipermail/gnso-rds-pdp-wg/2017-February/date.html (subject is "Update to RDS PDP polling process" -- a few messages at the top of that page) I think that precedent is dispositive of this issue. An anonymous poll would not be aligned with the principles of transparency and accountability. To do otherwise would represent an irregularity in this PDP's procedures, which could undermine its legitimacy. Not that any poll is even a proper tool at this point, as per my prior post: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/001000.html (if discussions are complete, as claimed, there should be no polls, unless we're in a rare situation after the iterative process has been unsuccessful) Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Consensus Process concerns -- settling on designations
by George Kirikos Dec. 18, 2017

Dec. 18, 2017

Hi folks, After today's call, I'm very concerned about the co-chairs' suggested path forward, which I disagree with. In particular, page 9 of the working group guidelines talks about a "recommended method" for discovering the consensus level designation on recommendations. http://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-01sep16-en.pdf "The recommended method for discovering the consensus level designation on recommendations should work as follows: i. After the group has discussed an issue long enough for all issues to have been raised, understood and discussed, the Chair, or Co-Chairs, make an evaluation of the designation and publish it for the group to review." It's unclear when the deadline for "all issues to have been raised, understood and discussed" is, and how the Co-Chairs intend to use those discussions to make the designation. For example, some of the proposals were put forth in their final form just in the past 24 hours (e.g. Zak's, my proposal #6, Paul Tattersfield's proposal). Based on all the discussion that has taken place, none of these new options have received much disagreement or opposition, and indeed there might be "Full consensus" if one goes by the standard of page 8 of the above document. The process is also supposed to be iterative. Instead, we appear to be heading to the use of yet another anonymous poll, rather than having full working group discussions on these matters. Polls are supposed to be "rare", and also "care should be taken in using polls that they do not become votes." And the operating procedures appear to be against the use of anonymity in polls, saying (at the bottom of page 9) "However, in all other cases.....their name must be explicitly linked, ****especially in those cases where polls where (sic) taken.****" (emphasis added) So, not only do we appear to be heading to use of a poll, I'm concerned that those polls will be misused as votes, and not attach names to the votes/positions either. Page 10 of the procedures even says clearly that "Consensus calls should always involve the entire Working Group and, for this reason, ****should take place on the designated mailing list***** to ensure that all Working Group members have the opportunity to fully participate in the consensus process." (emphasis added) The use of an anonymous poll hosted on a 3rd party platform seems inconsistent with that consensus happening on the mailing list. Furthermore, let's suppose "several participants" (language of page 10) openly disagree with a designation. How will the Co-Chairs answer that? It appears to me that anonymous polls will by necessity be pointed to as votes under that scenario, i.e. they'll say "well, we had 10 people in the poll support that position, and 5 people not support it." Polls would turn into votes that are given more weight than those who actually participated actively on the calls and on the mailing list, fully articulating their positions and engaging in the debate. That does not seem correct to me. In my view, we should perhaps do things a different way. I would suggest we start 6 new topics organized directly on the mailing list (as recommended on the working group guidelines) for (separate subject for each thread): (a) Option A (b) Option B (c) Option C (d) Zak's proposal finalized today (can call it Option D) (e) my proposal of last night, final language of Option #6 (call it Option E, or can incorporate it into Option C if the backers of that proposal saw it as part of Option C) (f) Paul Tattersfield's proposal of today (can call it Option F, or break it up into subparts, e.g. Mediation aspect as F1, another aspect as F2, etc.) Then we can have a robust, open and transparent discussion that everyone can participate in (in parallel with the weekly calls). Those who support an option can have a dialog with those who don't support it. Positions will evolve and people's views might change based on those discussions. That contrasts starkly with "polls" which are static, non-evolving and just a snapshot of a "position statement". Levels of consensus will be directly observable in those discussions. Some of the options above are not mutually exclusive, either, and it seems that the proposed poll doesn't reflect that. e.g. one can be in favour of Zak's proposal *and* Option 6 and Option A, yet that wouldn't be captured if someone just picks a single option. Also, a multi-phase approach might also make sense. If there was a broad consensus for Zak's proposal in a first phase (referring these quirks of process which affect registrant's rights to the RPM PDP), then it trumps the other options. It seems that question should be decided first. If there wasn't a broad consensus for it, then the next step would be to check whether the other options have a consensus or not. We ran out of time today to fully address these process concerns, so I'd appreciate the input of others who might be concerned, especially those who could not attend the call. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/

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Recording, transcript and materials from Tuesday discussion on Nominet appeal process
by Mary Wong Dec. 14, 2017

Dec. 14, 2017

Dear all, Staff is pleased to report that the recording and transcript of the discussion held this past Tuesday with David Taylor and Nick Wenban-Smith on the Nominet appeal process have now been posted to the Working Group wiki space: https://community.icann.org/x/3hlyB. We have also posted copies of the Nominet dispute resolution policy and procedure on the wiki page. Thanks and cheers Mary From: Mary Wong <mary.wong(a)icann.org> Date: Tuesday, December 12, 2017 at 11:25 To: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: REMINDER: Call TODAY with David Taylor and Nominet legal counsel Hello all, Just a reminder that (in addition to the regular Working Group call this Thursday), a special call has been scheduled for today, Tuesday 12 December, at 1800 UTC with David Taylor and Nick Wenban-Smith, to discuss the Nominet appeal process. Please see the email below for dial-in and Adobe Connect information. Cheers Mary From: Ntfy-gnso-igo-ingo-crp <ntfy-gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Julie Bisland <julie.bisland(a)icann.org> Date: Monday, December 11, 2017 at 14:16 To: "Ntfy-gnso-igo-ingo-crp(a)icann.org" <Ntfy-gnso-igo-ingo-crp(a)icann.org> Cc: "gnso-secs(a)icann.org" <gnso-secs(a)icann.org> Subject: [Ntfy-gnso-igo-ingo-crp] Meeting Invitation: IGO-INGO Access to Curative Rights Protection Mechanisms call with guests on Tuesday, 12 December 2017 at 18:00 UTC Dear all, The IGO-INGO Access to Curative Rights Protection Mechanisms meeting between interested Working Group members and David Taylor (a partner at the Hogan Lovells law firm, who is a Nominent panelist and veteran ICANN community participant) as well as Nick Wenban-Smith (Nominet’s legal counsel) will take place on Tuesday, 12 December 2017 at 18:00 UTC for 60 minutes. 10:00 PST, 13:00 EST, 18:00 London GMT, 19:00 Paris CET For other times: https://tinyurl.com/y86y87y8[tinyurl.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__tinyurl.com_y86y87y8&d…> Adobe Connect WITH AUDIO enabled:https://participate.icann.org/crp For those of you using the Adobe Connect audio, you may do so by activating your computer microphone via the Adobe room (Using a headset is preferable here). Please confirm your dial-out requests and apologies to GNSO Secretariats at gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> ______________________________________________________________________ Participant passcode: IGO Dial in numbers: Country Toll Numbers Freephone/ Toll Free Number ARGENTINA 0800-777-0519 AUSTRALIA ADELAIDE: 61-8-8121-4842 1-800-657-260 AUSTRALIA BRISBANE: 61-7-3102-0944 1-800-657-260 AUSTRALIA CANBERRA: 61-2-6100-1944 1-800-657-260 AUSTRALIA MELBOURNE: 61-3-9010-7713 1-800-657-260 AUSTRALIA PERTH: 61-8-9467-5223 1-800-657-260 AUSTRALIA SYDNEY: 61-2-8205-8129 1-800-657-260 AUSTRIA 43-1-92-81-113 0800-005-259 BELGIUM 32-2-400-9861 0800-3-8795 BRAZIL RIO DE JANEIRO: 55-21-40421490 0800-7610651 BRAZIL SAO PAULO: 55-11-3958-0779 0800-7610651 CHILE 1230-020-2863 CHINA CHINA A: 86-400-810-4789 10800-712-1670 CHINA CHINA B: 86-400-810-4789 10800-120-1670 COLOMBIA 01800-9-156474 CROATIA 080-08-06-309 CZECH REPUBLIC 420-2-25-98-56-64 800-700-177 DENMARK 45-7014-0284 8088-8324 EGYPT 0800000-9029 ESTONIA 800-011-1093 FINLAND 358-9-5424-7162 0-800-9-14610 FRANCE LYON: 33-4-26-69-12-85 080-511-1496 FRANCE MARSEILLE: 33-4-86-06-00-85 080-511-1496 FRANCE PARIS: 33-1-70-70-60-72 080-511-1496 GERMANY 49-69-2222-20362 0800-664-4247 GREECE 30-80-1-100-0687 00800-12-7312 HONG KONG 852-3001-3863 800-962-856 HUNGARY 36-1-700-8856 06-800-12755 INDIA INDIA A: 000-800-852-1268 INDIA INDIA B: 000-800-001-6305 INDIA INDIA C: 1800-300-00491 INDONESIA 001-803-011-3982 IRELAND 353-1-246-7646 1800-992-368 ISRAEL 1-80-9216162 ITALY MILAN: 39-02-3600-6007 800-986-383 ITALY ROME: 39-06-8751-6018 800-986-383 ITALY TORINO: 39-011-510-0118 800-986-383 JAPAN OSAKA: 81-6-7878-2631 0066-33-132439 JAPAN TOKYO: 81-3-6868-2631 0066-33-132439 LATVIA 8000-3185 LUXEMBOURG 352-27-000-1364 8002-9246 MALAYSIA 1-800-81-3065 MEXICO GUADALAJARA (JAL): 52-33-3208-7310 001-866-376-9696 MEXICO MEXICO CITY: 52-55-5062-9110 001-866-376-9696 MEXICO MONTERREY: 52-81-2482-0610 001-866-376-9696 NETHERLANDS 31-20-718-8588 0800-023-4378 NEW ZEALAND 64-9-970-4771 0800-447-722 NORWAY 47-21-590-062 800-15157 PANAMA 011-001-800-5072065 PERU 0800-53713 PHILIPPINES 63-2-858-3716 1800-111-42453 POLAND 00-800-1212572 PORTUGAL 351-2-10054705 8008-14052 ROMANIA 40-31-630-01-79 RUSSIA 8-10-8002-0144011 SAUDI ARABIA 800-8-110087 SINGAPORE 65-6883-9230 800-120-4663 SLOVAK REPUBLIC 421-2-322-422-25 0800-002066 SOUTH AFRICA 080-09-80414 SOUTH KOREA 82-2-6744-1083 00798-14800-7352 SPAIN 34-91-414-25-33 800-300-053 SWEDEN 46-8-566-19-348 0200-884-622 SWITZERLAND 41-44-580-6398 0800-120-032 TAIWAN 886-2-2795-7379 00801-137-797 THAILAND 001-800-1206-66056 TURKEY 00-800-151-0516 UNITED ARAB EMIRATES 8000-35702370 UNITED KINGDOM BIRMINGHAM: 44-121-210-9025 0808-238-6029 UNITED KINGDOM GLASGOW: 44-141-202-3225 0808-238-6029 UNITED KINGDOM LEEDS: 44-113-301-2125 0808-238-6029 UNITED KINGDOM LONDON: 44-20-7108-6370 0808-238-6029 UNITED KINGDOM MANCHESTER: 44-161-601-1425 0808-238-6029 URUGUAY 000-413-598-3421 USA 1-517-345-9004 866-692-5726 VENEZUELA 0800-1-00-3702 VIETNAM 120-11751 Thank you. Kind regards, Julie

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Recordings, attendance & AC Chat for IGO-INGO Curative Rights Protection PDP WG call on Thursday, 14 December 2017 at 17:00 UTC
by Terri Agnew Dec. 14, 2017

Dec. 14, 2017

Dear All, Please find the AC Chat attached, and the attendance, MP3 recording, and AC recording below for the IGO-INGO Curative Rights Protection PDP WG Meeting held on Thursday, 14 December 2017 at 17:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-14dec17-en.mp3 AC Recording: https://participate.icann.org/p761z8dqqsj/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos Petter Rindforth Paul Tattersfield Philip Corwin Jay Chapman Nat Cohen Zak Muscovitch Osvaldo Novoa Mike Rodenbaugh Gary Campbell Apologies: none ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang Terri Agnew ** 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/> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki Agenda page: <https://community.icann.org/x/7xZyB> https://community.icann.org/x/7xZyB Thank you. Kind regards, Terri

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PLEASE READ: Deadline for proposals and agenda for Working Group meeting this week
by Mary Wong Dec. 14, 2017

Dec. 14, 2017

SENT ON BEHALF OF PHIL AND PETTER (WORKING GROUP CO-CHAIRS) Dear Working Group members, We are moving toward concluding our deliberations on the topic of whether (and if so, what) recommendation to make to deal with the situation where the losing respondent files a claim in a national court but the IGO succeeds in claiming immunity from the jurisdiction of that court. With thanks to Zak for timely submitting proposed text on a new option for this topic, which we will consider on our next call this Thursday, we request that if any Working Group member has any proposed text for consideration, please submit the actual text you are proposing for Working Group consideration no later than one hour before the Thursday call (i.e. 1600 UTC on 14 December). This will be the deadline for submission of any options to be included in any further polling of the WG for support or opposition. The proposed agenda for the call this Thursday is as follows: 1. Roll call/updates to Statements of Interest 2. Co-Chairs’ recap of discussion with Nominet legal counsel on the Nominet appeal process 3. Review of text proposed by Zak for a new option (in the context of a possible Recommendation #3) 4. Presentation of Co-Chairs’ proposal for concluding deliberations on Recommendation #3 and conducting the Working Group Consensus Call for all Recommendations and options 5. Scheduling the next meeting We hope that as many Working Group members as possible can attend the call this week, as we hope to wrap up discussions on this one remaining possible recommendation, and proceed with the formal Consensus Call before the end of this year. Best regards, Phil and Petter

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A way forward that actually helps the IGOs in the real world
by Paul Tattersfield Dec. 14, 2017

Dec. 14, 2017

Rather than spending an inordinate amount of time on what is effectively a quirk of process, it would make much more sense to put in place solutions that would actually help an IGO seeking to initiate UDRP proceedings whilst at the same time not removing any rights from registrants defending their domain. Given the IGO is clearly initiating proceedings much of the reasoning on immunity in the Swaine Report and the working group’s own draft report is not relevant.** I therefore respectfully suggest that the working group takes a step back from the consensus vote and looks at what practical measures can easily be implemented to actually provide some tangible benefits. *Outcomes *Firstly the working group outcomes need to be separated from the options to prevent some working group members conflating them to instil fear of report rejection etc. but once we are at that point then the working group has a lot of options and can seek to genuinely help all parties resolve their disputes, not just those that are subjected to a highly unusual (if not even never occurring) quirk of process. I personally would do something like below but it really depends on how long people want spend on each aspect. *Mediation *Private mediation is a very simple improvement: If it gets a percentage* of disputes dealt with faster and/or at a lower cost then that has to be a good thing all round. We should arrange for the UDRP providers provide it at no cost to the parties. * I understand from the Nominet presentation earlier in the week that around 30% of disputes are settled this way in their dispute process, which is very impressive given the low cost to both parties. *Arbitration *UDRP already permits the resolution of disputes through arbitration I would bind the IGOs to arbitration in the same way the mutual jurisdiction clause binds complainants to the registrant’s judicial system. Rules for Uniform Domain Name Dispute Resolution Policy App: 28/09/2013 - Imp:31/07/15 3 (xii) State that Complainant will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to the jurisdiction of the courts in at least one specified Mutual Jurisdiction; 3 (xiii) State that an IGO Complainant will submit, with respect to any challenges to a decision in the administrative proceeding canceling or transferring the domain name, to arbitration. I’m personally quite comfortable with arbitration as long as it is a free choice for the registrant, I’m aware other working group members are really opposed to it, but I don’t see a problem if it's just another optional track. It also helps in situations where the judicial route is not available. If I wanted more people to choose it, the working group could set out a framework, but it needs to be faster, cheaper and less risk involved (i.e. name only etc.) for registrants to choose to go that way. *Refusal to participate in proceedings *Where an IGO refuses to take part in judicial or arbitral proceedings I would quash any UDRP determination decision. My guess is if we could get all this done then the working group will have done a pretty good job. If people are concerned with ensuring that IGO and non-IGO disputes are all to be treated identically we can easily re-align the two routes by recommending that our working group sunsets our recommendations upon the implementation of the All RPM Working Group’s findings. Best regards, Paul. *** Why the IGOs are never entitled to an immunity defence * Absent UDRP there are two possible ways the immunity question could come before a court: (a) A TM owner seeks to acquire a domain which an IGO has registered (b) An IGO seeks to acquire a domain which a domain registrant has registered In (a) the IGO would be entitled to raise an immunity defence In (b) the IGO would be required to waive immunity for the court to consider the matter. As the UDRP is an administrative procedure to help take less complex cases out of the judicial system if UDRP is to afford the same protections as any other forum then UDRP needs to take into account both cases. (a) A TM owner seeks to acquire a domain which an IGO has registered by bringing a UDRP (b) An IGO seeks to acquire a domain which a domain registrant has registered by bringing a UDRP The working group has not looked at (a) which hides the fact that in (b) the IGO is never entitled to immunity under any circumstances after initiating an action. Most of the reasoning in the Swaine report applies to (b) and is therefore not relevant to the working group's report as we are not considering (a) the case where a TM holder initiates UDRP proceedings against an IGO. For example the working group’s draft report (page 17): *There is no single universal rule that is applicable to IGOs’ jurisdictional immunity globally. Rather, such immunity is essentially contextual - IGOs generally enjoy immunity under international law, but different jurisdictions apply the law differently, and even within the same jurisdiction different IGOs may be treated differently: *Including this is clearly incorrect as this reasoning can not be applied to (b) and the report does not consider (a)

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Re: [Gnso-igo-ingo-crp] Action items from Working Group call this past Thursday
by Zak Muscovitch Dec. 13, 2017

Dec. 13, 2017

Dear all, Further to Mary’s below email and further to the Working Group Call of December 7, 2017, wherein Phil asked for proposed wording for consideration and discussion, in connection with my suggestion that the Working Group recommend that the options for how to deal with IGO concerns be addressed through the RPM WG, please see below: “The IGO WG has extensively deliberated on the question of whether changes are required in order to address IGO concerns and has successfully developed several potential options for addressing this issue. These potential options however, would necessarily involve revisions to the UDRP itself. The IGO WG is mindful that any such substantive changes to the UDRP itself should be evaluated within the context of how they affect all stakeholders and how they would affect the delicate balance which the UDRP has achieved between competing interests. Accordingly, the IGO WG strongly recommends that any changes to how the UDRP procedure is drafted and employed for IGO's, if any, should be referred to the RPM WG for consideration within its broader mandate to review the UDRP.” As you know, the IGO WG commenced its work over three years ago. The complexity of the issues, and the delay created by the preparation and review of the Swaine memo, resulted in the work of this WG being prolonged beyond the expectations of any of its members. In the meantime, the RPM WG has begun its work and will shortly begin its review of the UDRP. We find ourselves contemplating recommending changes to the UDRP, just when the RPM WG is on the verge of considering similar issues in a broader more comprehensive context. The IGO WG’s careful review of the issues raised by the IGOs' request for modifications has revealed that any proposed solutions to the discrete problem raised by the IGOs implicates core principles at the heart of the UDRP that affect the balance of rights for participants and the grand bargain among the stakeholders that led the UDRP to take its current form. In particular, the IGO's assertion of sovereign immunity to judicial review undermines the fundamental principle that access to the UDRP was a simpler alternative to judicial consideration but should never prevent access to the courts for a final determination of the issues. In addition, the creation of a new complex arbitration procedure is being touted for its benefits in addressing a potential lack of a cause of action for de novo judicial review in the Mutual Jurisdiction. Rather than promote a complex solution to a fundamental issue of access to judicial review that is limited to a fringe circumstance, the desirability of ensuring that the UDRP provides access to a Mutual Jurisdiction empowered to de novo review of UDRP decisions calls out for a comprehensive solution that can best be provided through the work of the RPM WG. Option A, while adhering most closely to the legal principles underpinning the UDRP has been characterized as politically unpalatable, and indeed "dead on arrival' at the GNSO council. Option C, as mentioned above, attempts to bandage over a fundamental concern with judicial access with a complex apparatus that will need countless hours to develop despite the expectation that it may rarely if ever be used. Neither option has attracted a strong consensus from the Working Group members. I suggest that is because both options both have defects that can better be addressed by the work of the RPM WG. Instead, in my view, the above suggested alternative approach is attractive for three reasons. First, while it may be within the mandate of the IGO WG to recommend changes for addressing IGO concerns, it is ill advised to make any such specific recommendations outside of the context of the far broader mandate of the RPM WG. The UDRP has been largely successful since 1999 because it created a finely balanced dispute resolution regime. All proposed changes which the IGO WG has considered, involve tinkering with the UDRP, and any such tinkering risks throwing off the balance which it has achieved to date. For example, under ‘Option C’, the provisions of Paragraph 4(k) of the UDRP would have to be re-drafted so as to enable an IGO to use the UDRP without necessarily agreeing to the jurisdiction of courts in a subsequent action commenced by a registrant challenging a UDRP decision. Likewise, ‘Option A’ also necessarily requires a substantial revision to the UDRP, as under that proposal, Paragraph 4(k) would also have to be re-drafted, to provide for the staying of a UDRP decision in the event that an IGO successfully asserted sovereign immunity in a subsequent court action challenging a UDRP transfer decision. Paragraph 4(k) is arguably one of the most fundamental and important provisions in the UDRP and was ostensibly included to ensure that registrants did not lose the right which they enjoyed to commence court proceedings prior to the establishment of the UDRP. It is therefore inappropriate to be recommending substantive changes to this crucial provision of the UDRP merely to address a discrete concern of IGO’s, without taking into account how such changes may affect the underlying and fundamental balance which the UDRP has achieved. Such considerations, if not beyond the remit of the IGO WG, are certainly within the remit of the RPM WG, which is better equipped to have that discussion given its mandate and participants. The apparent split between the ‘Option A’ camp and the ‘Option C’ camp is a good indication that this issue is so controversial that it cannot be reasonably determined within the limited context of IGO’s only, but rather is best dealt with through UDRP review in the RPM WG. If there were a solution available to the IGO WG that enabled a solution without opening up the UDRP in such fundamental ways, then it likely would have engendered wider support than we are seeing now. Second, it may come as somewhat of a surprise to some members of the RPM WG that changes are being recommended to the UDRP by the IGO WG, as many may have reasonably understood that it was only the RPM WG which had a mandate to review the UDRP and recommend substantial changes to fundamental provisions with far reaching implications. It may even be somewhat embarrassing to be recommending such substantial changes when it is apparent that not all interests are represented in the IGO WG, including but not limited to the noticeable absence of IGO’s themselves. Third, this IGO WG has conducted itself admirably and thoughtfully over a long period of time and has reached consensus on most issues. It would be a shame to allow this success to be diminished by such pronounced divisions on this last remaining issue, with two primary camps maintaining their positions in favor of Option A and Option C, respectively. It would be far better to be able to include in the final report, very strong consensus amongst all IGO WG members on all issues. Otherwise, it appears that support between the two primary options is split, without a firm mandate to recommend either proposal, and this outcome would detract from the WG’s accomplishments unnecessarily. Furthermore, it is of little utility to be recommending any particular option with such a weak level of consensus. It is far preferable to be in a position to make recommendations that enjoy strong consensus, and in the absence of that, it is more appropriate to refer this controversial issue to the RPM WG where it can be considered within the context of a review of the UDRP including the balance which it has enjoyed to date. Yours truly, Zak Zak Muscovitch Muscovitch Law P.C. 446 Eglinton Avenue West Toronto, Ontario, Canada M5N 1A5 TEL: 416-924-5084 FAX: 416-920-6306 TOLL-FREE: 1-866-654-7129 Http://www.Muscovitch.com <http://www.muscovitch.com/> Http://www.DNattorney.com <http://www.dnattorney.com/> *From:* Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] *On Behalf Of *Mary Wong *Sent:* December-11-17 12:13 AM *To:* gnso-igo-ingo-crp(a)icann.org *Subject:* [Gnso-igo-ingo-crp] Action items from Working Group call this past Thursday Dear all, The following were captured as Action Items by staff from the last Working Group call, held on Thursday 7 December: - Working Group members who support the suggestion that a general recommendation be made, to refer the question of balancing the rights of IGO complainants with those of registrants (vis-à-vis the scenario where a losing respondent in a UDRP files proceedings in a national court and the IGO complainant succeeds in pleading jurisdictional immunity and including a possible refinement/modification of Paragraph 4(k) of the UDRP), to the RPM Review Working Group are to develop a specific proposal for full Working Group discussion at the meeting this coming Thursday (14 December); and - George Kirikos to circulate updated specific language, if possible, in relation to Option 6 for Working Group consideration. Thanks and cheers Mary *From: *Mary Wong <mary.wong(a)icann.org> *Date: *Wednesday, December 6, 2017 at 18:08 *To: *"gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> *Subject: *Topics for discussion on Working Group call today Dear all, As a reminder, please note that for the Working Group call that is coming up in a few hours, the co-chairs plan to focus on discussing a possible Recommendation 3 and finalizing a possible approach to the various Options that have been under discussion. To that end, staff is re-circulating the pre-ICANN60 preliminary poll results so that members may review the specific language for Options A-C. In addition, there were also follow-up discussions on this mailing list in respect of resubmission by George Kirikos of what was called “Option 6” – you can find these email threads here: - http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000944.html and - http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/000957.html Staff has in the meantime updated the draft excerpts document that was discussed on the call last week, concerning language for Recommendations 1, 2 and 4. We will circulate the update separately for members to ensure that our updates accurately capture what was discussed and agreed. Thanks and cheers Mary Thanks and cheers Mary

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VOTING - Re: PLEASE READ: Deadline for proposals and agenda for Working Group meeting this week
by Paul Keating Dec. 13, 2017

Dec. 13, 2017

I agree with this suggestion. I further suggest that the consensus decision be undertaken as a poll so that all members can participate even if they are not able to attend the call personally. Thank you, Paul Keating From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Zak Muscovitch <zak(a)muscovitch.com> Date: Wednesday, December 13, 2017 at 4:30 PM To: Mary Wong <mary.wong(a)icann.org>, <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] PLEASE READ: Deadline for proposals and agenda for Working Group meeting this week > Dear All, > > With regards to the Consensus Call, I wonder if it is preferable to have a > ranked ballot¹ if possible, so that members can rank their choices in order > of preference. In this manner the vote will reflect the choice that is the > most agreeable to the most people. > > Ranked voting is considered a more accurate measure of voter sentiment than > the typical 'plurality' voting, especially when there are more than two > options, and especially when some of the options share similarities while > others are quite dissimilar. Ranked voting is in use by Australia, by > Canadian political parties, by the Oscars for picking the Best Picture winner, > by San Francisco for picking it mayor and now by Maine for picking most of its > elected officials > (https://www.nytimes.com/2016/12/03/us/maine-ranked-choice-voting.html > <https://www.nytimes.com/2016/12/03/us/maine-ranked-choice-voting.html> ). > More information about ranked ballots is available here: > https://en.wikipedia.org/wiki/Ranked_voting > <https://en.wikipedia.org/wiki/Ranked_voting> . > > > Zak > > > > From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf > Of Mary Wong > Sent: December-12-17 4:47 PM > To: gnso-igo-ingo-crp(a)icann.org > Subject: [Gnso-igo-ingo-crp] PLEASE READ: Deadline for proposals and agenda > for Working Group meeting this week > > > SENT ON BEHALF OF PHIL AND PETTER (WORKING GROUP CO-CHAIRS) > > Dear Working Group members, > > We are moving toward concluding our deliberations on the topic of whether (and > if so, what) recommendation to make to deal with the situation where the > losing respondent files a claim in a national court but the IGO succeeds in > claiming immunity from the jurisdiction of that court. With thanks to Zak for > timely submitting proposed text on a new option for this topic, which we will > consider on our next call this Thursday, we request that if any Working Group > member has any proposed text for consideration, please submit the actual text > you are proposing for Working Group consideration no later than one hour > before the Thursday call (i.e. 1600 UTC on 14 December). This will be the > deadline for submission of any options to be included in any further polling > of the WG for support or opposition. > > The proposed agenda for the call this Thursday is as follows: > 1. Roll call/updates to Statements of Interest > 2. Co-Chairs¹ recap of discussion with Nominet legal counsel on the Nominet > appeal process > 3. Review of text proposed by Zak for a new option (in the context of a > possible Recommendation #3) > 4. Presentation of Co-Chairs¹ proposal for concluding deliberations on > Recommendation #3 and conducting the Working Group Consensus Call for all > Recommendations and options > 5. Scheduling the next meeting > > We hope that as many Working Group members as possible can attend the call > this week, as we hope to wrap up discussions on this one remaining possible > recommendation, and proceed with the formal Consensus Call before the end of > this year. > > Best regards, > > Phil and Petter > > _______________________________________________ Gnso-igo-ingo-crp mailing list > Gnso-igo-ingo-crp(a)icann.org > https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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Recordings, attendance & AC Chat for IGO-INGO Curative Rights Protection PDP with David Taylor and Nick Wenban-Smith on 12 December 2017 at 18:00 UTC
by Terri Agnew Dec. 12, 2017

Dec. 12, 2017

Dear All, Please find the AC Chat attached, and the attendance, MP3 recording, and AC recording below for the IGO-INGO Access to Curative Rights Protection Mechanisms meeting between interested Working Group members and David Taylor (a partner at the Hogan Lovells law firm, who is a Nominent panelist and veteran ICANN community participant) as well as Nick Wenban-Smith (Nominet's legal counsel) held on Tuesday, 12 December 2017 at 18:00 UTC. Mp3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-12dec17-en.mp3 AC Recording: https://participate.icann.org/p81ygnodaog/ The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar Attendees: George Kirikos Petter Rindforth Paul Tattersfield Philip Corwin Guest Speakers: David Taylor Nick Wenban-Smith Apologies: Osvaldo Novoa, Paul Keating ICANN staff: Mary Wong Steve Chan Berry Cobb Dennis Chang Terri Agnew ** 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/> http://mm.icann.org/pipermail/gnso-igo-ingo-crp/ Wiki Agenda page: <https://community.icann.org/x/3hlyB> https://community.icann.org/x/3hlyB Thank you. Kind regards, Terri

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