June 2018 - Gnso-igo-ingo-crp

Formal Appeal of IGO PDP actions of Chair, Liaison, and Staff (was Re: Intention to File another Section 3.7 appeal (was Re: Our next meeting and Result of consensus Call: IGO-INGO Access to Curative Rights Protection Mechanisms WG meeting on Tuesday, 12 June 2018 16:00 UTC))
by George Kirikos July 2, 2018

July 2, 2018

Hi folks, As promised, as per section 3.7 of the GNSO Working Group Guidelines: https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-1-g… I hereby invoke the appeal mechanism, as the Chair, Liaison (Susan) and Staff are "not performing their role according to the criteria in Section 2.2." and furthermore are working to sabotage the final report of this working group through the unilateral imposition of unrealistically short deadlines for the report which would negatively affect its quality. Furthermore, they are not following the correct procedures for a Consensus Call, although they falsely claim to have already completed one. On May 25, 2018, they opened up what they called a "Consensus Call", https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001213.html even though a real consensus call requires that the opening of a consensus call include (1) a nearly complete final report and (2) an initial designation level of consensus for each recommendation. I pointed this out in a call before that May 25, 2018 email but was ignored. I further pointed it out in email on June 6, 2018: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001219.html with examples of 2 other PDPs. Furthermore, to understand appropriate deadlines for editing documents (which we've not even received to date) it is educational to look at the response times of the Chair Petter Rindforth (and prior co-chair Phil Corwin, when applicable), Heather Forrest (GNSO Council Chair) and Susan Kawaguchi (Liaison). If their response times were superhumanly fast, then they might have a case for expecting everyone else to respond very fast to draft final reports, edits, and so on. However, their response times are slow, at best. For example: i) Phil/Petter -- weeks to schedule calls for the first Section 3.7 appeal (initiated in December 2017). 5 days sought to respond to my first written document (which is obviously much shorter than the final report). Obviously a single response from a small group (2 people) whose interests are aligned will take much less time than editing a document where there are more group members and obvious divisions, where it will take multiple edits and an iterative process to come to agreement on final text. ii) Heather -- her typical turnaround time to respond to emails has been on the order of 1 *week*. And that's when she even bothers to respond at all. iii) Susan -- even longer gaps in response times. e.g. March 14 2018 "office hours": https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-March/001095.html with no summary report until a month later. https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001111.html And that was a *3 page* document. I made comments on it, was forced to write an "Everything wrong with the summary report" email on April 26: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001139.html (attachment at bottom of that page) and pointed out 2 weeks later that obvious issues I'd raised earlier had still not been addressed: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001140.html iv) Petter: today's email regarding obvious issues in yesterday's document (falsely claiming to be "Results of a consensus call", but which is in fact just an initial designation level, a flawed one at that) is telling: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001252.html Rather than go back and fix the multiple obvious errors, and reissue the document immediately with a sense of urgency and in a timely manner, he takes a lackadaisical approach, procrastinating and forcing others to ultimately have to redo his work. He's happy to take all the time he wants to create his documents, but then others are expected to make substantial comments on a yet to be issued nearly final draft of a final report in an impossibly fast manner. That's inconsistent and asymmetric, holding others to a standard that he himself doesn't uphold for his own substandard work. On April 26, 2018, Susan stated: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001138.html "It is the role of the WG, not the liaison or the Council, to drive the effort to a final document for presentation to Council." But, on May 10, 2018, she claimed: https://gnso.icann.org/sites/default/files/file/field-file-attach/transcrip… "This was a decision made by GNSO Council leadership and we’re going to move forward with the current agenda. " (page 4) and " Paul Keating: Okay, Susan, can you commit that you're not going to release a report for filing – or for consideration by the Council prior to us completing our consensus process? I’m asking you point blank, yes or no. Susan Kawaguchi: Yes, point blank, yes." But, as I pointed out above, we've not had a proper consensus call yet (i.e. we've not seen the nearly final draft report, nor had the initial designations which accompany it, and the usual 2 weeks to make changes, and usually a week or so to tidy up the final document. Furthermore, the May 24, 2018 GNSO Council meeting transcript demonstrates that there was no resolution passed compelling a June deadline for this PDP, see: https://mm.icann.org/pipermail/council/2018-May/021353.html https://gnso.icann.org/en/meetings/transcript-council-24may18-en.pdf [pages 22-26] https://mm.icann.org/pipermail/council/2018-May/021364.html It was a "decision" that didn't come from the working group members, but was imposed on us. Page 25 of that transcript even acknowledges that the Chair of the GNSO Council doesn't *have* that kind of decision-making authority in the first place. "That 3.7 is really an interesting beast in a sense of what it asks of the GNSO Chair who for all intents and purposes everywhere else in our documents doesn’t have any sort of a decision making role and ****nor does 3.7 give the chair the authority to make any decisions****, if you like, it’s really just a reference for the discussion; if the discussion is unsuccessful with the cochairs or the chairs of the PDP then the matter gets discussed with the chair." (emphasis added) Thus, any claimed "decision" made by "GNSO Council leadership" is illegitimate. The proper procedure (if we could not resolve things ourselves) would have involved allowing me to make my case to GNSO Council, so *they* could make a decisio, via a resolution/vote. This never happened. ICANN staff continually inject their own policy ideas into this PDP. That is inconsistent with their clerical role as per section 2.2.6 of the Working Group Guidelines. Furthermore, as "secretary" (section 2.2.3), they're not adequately recording the working group's activities. (we've yet to even see the nearly final version of the Final Report, that we must then edit, etc.). In conclusion, I ask that these issues be corrected, and that we be given sufficient time to complete the final report (perhaps for the July 2018 GNSO Council meeting, if sufficient effort is agreed to be made to keep the work moving forward, with ongoing weekly calls and timely edits, etc. to keep us on track). [There had been a suggestion in May of a "Placeholder document", see: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001164.html but I'm not confident we'd be able to finish that in a timely manner, with the expectation of a final document for the upcoming June council meeting] Note that I do not wish for the upcoming call (Tuesday) to be cancelled, nor for our work to stop. This Section 3.7 appeal is simply intended to fix the various issues I've raised, and give us sufficient time to produce a polished final report. I will make myself readily available for the required phone calls with the Chair of this PDP and/or the GNSO Council chair. [feel free to simply pick up the phone and call me!] Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Sun, Jun 10, 2018 at 3:06 PM, George Kirikos <icann(a)leap.com> wrote: > Less than 1 hour left (it's just after 3:00 pm now in Toronto). Does > anyone think I bluff? (especially after already filing a DIDP request > this morning) Given I've not heard anything to change my mind yet, if > Petter, Susan and Heather have time *today* (right after 4 pm Toronto > time), that might move things along expeditiously, after the 3.7 is > invoked, to immediately have the required calls, etc. > > Sincerely, > > George Kirikos > 416-588-0269 > http://www.leap.com/ > > > > On Sun, Jun 10, 2018 at 9:08 AM, George Kirikos <icann(a)leap.com> wrote: >> Not good enough, Mary. Not even close to being good enough. >> >> Had I been in your position (your = Mary, Steve, Petter), the *first* >> thing I would have done was immediately acknowledge to the group that >> there were obvious errors in the document, and it would have been >> accompanied by an apology. Then, I would have immediately taken >> ownership of the issue, and told people to hold off on reading it, and >> would have *recounted* all the support levels, and then double- and >> triple-checked them to get it right. I would have worked through the >> night to get it done, in order to make sure that others wouldn't have >> to redo the work, and would have time to review things. >> >> We have your response that I'm replying to, and we also have Petter's: >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001247.html >> >> which fail to come close to being an acceptable response. It is >> trivial to verify that Mike Rodenbaugh's input wasn't reflected in the >> report. Trivial to verify that David Maher's input was similarly >> ignored. And so on. >> >> There's a pattern here. The last time there were blatantly obvious >> mistakes in reports, did you guys fix them in a timely manner? Go read >> the post at: >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001140.html >> >> where I kept calling out this issue, wrong counts of the inputs. I'm >> forced to write these long "rebuttal" documents constantly pointing >> out things like "Everything Wrong with the IGO PDP Summary Report from >> the Liaison": >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001139.html >> >> and even then, there's no sense of urgency from the ones making >> mistakes to take ownership and correct things in a timely manner. And >> even when they are later "fixed", they're slipped in with no >> explanation, and I have little confidence that the updated numbers are >> actually correct. >> >> I think it's clear that this PDP would have gone into oblivion, with >> no consensus on Rec #5, until I took it upon myself to get folks to >> start posting transparently on the mailing list what their views were. >> See the thread "Public Display of Possible Consensus": >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/date.html >> >> which I started because you guys created a non-transparent procedure >> (one not supported by the working group guidelines), and even then the >> numbers were *obviously* wrong, because they didn't add up (i.e. the >> 10 minute private calls with Susan + staff at the last ICANN meeting, >> supplemented by private emails). See the post that started it off at: >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001142.html >> >> The results of that open and transparent process (in line with working >> group guidelines) were very different with what Susan + staff >> prepared. The email at: >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001172.html >> https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAuz315di… >> >> painted a pretty picture showing that we were coalescing around >> consensus (around an option that the co-chairs and staff didn't >> like!). Rather than recognizing that, as I put it poetically, that >> "something magical was happening" >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001155.html >> >> Contrast that with what Susan + ICANN staff prepared (with *all* their >> time and resources) on April 13: >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001111.html >> >> (basically a *month* after the ICANN meeting) It really contains just >> half a page of poorly aggregated summary. Compare that with: >> >> https://docs.google.com/spreadsheets/d/e/2PACX-1vQrdpthCvFIGoECeVWbAuz315di… >> >> which didn't leave out anything, and laid things all on the table. And >> the Google docs was produced in a much more timely manner. And I'm not >> on ICANN salary, either. >> >> This demonstrable progress in achieving consensus was looked at with >> disdain. It wouldn't even get posted to the WebEx or Wiki by ICANN >> staff at that call. Phil Corwin resigned as co-chair shortly >> thereafter. >> >> Then, we wasted several weeks doing it all over again! As Mike Rodenbaugh said: >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001221.html >> >> "How many times do we have to say the same thing? My position has not >> changed since the last time I was asked, or the time before that." >> >> One definition of "insanity" is "doing the same thing over and over >> again and expecting different results." We did do it all over again, >> regardless, and the results were essentially the same (with a few new >> contributors) >> >> Now we're left with an artificially imposed and compressed time-frame >> to do 3 or 4 weeks' worth of work in a week (and it's really less than >> a week, because we know the last 2 days of that deadline are a >> Saturday and Sunday, and we know that our "Thursday" call was moved to >> "Tuesday", so presumably people have time conflicts on Thursday should >> we need to meet again or respond quickly to edits, feedback, etc. And >> even then, there should be time given for minority reports. So really >> we should be done by Thursday, to give people time do do minority >> reports by Sunday (that's really not fair to them, giving them just 3 >> days, 2 of which are weekend days, to finish their own work, but >> that's how the math is looking). And yet, it's now Sunday, and we >> don't even *have* the latest draft report to work on! >> >> I know I'm being forceful and assertive here, and am some might >> perceive that I'm not a "team player" by pointing all these issues >> out. But, I'm trying to raise the standards and get the job done >> correctly, achieving a final document that we can all be proud of. >> I've been the one helping to achieve a consensus, working with others. >> Instead, we risk producing a half-baked final report that the IGOs/GAC >> criticize unfairly, and that doesn't pass through the ICANN Board. >> >> Who'd be the beneficiary of that "bad" outcome where our report >> doesn't get accepted? Those who oppose the apparent consensus (Option >> #1). And that happens to be the current chair, the past co-chair, and >> ICANN staff themselves (ICANN staff repeatedly voiced opposition to >> Option #1, even though they're not members of this PDP -- they're here >> for clerical support). >> >> Phil Corwin openly points to that risk: >> >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001223.html >> >> "This option, regardless of support level or subsequent action by the >> GNSO Council, is highly unlikely to ever be adopted by the ICANN Board >> given the near-certainty of strong adverse advice from the GAC." >> >> I believe we have a strong justification for Option #1, and have very >> thorough and sound analysis to justify our positions. It's a >> recommendation that is backed by a diverse set of stakeholders >> participating in this PDP. It's all on the mailing list archives and >> on the past phone calls, but *hasn't* been put into the Final Report >> yet. It's incumbent upon us to put it into the Final Report, so that >> it's all properly captured, in anticipation of counter-arguments that >> will be used to try to undermine it. The IGOs/GAC will not be pointing >> out all the arguments on the mailing list. They're going to point to >> the Final Report alone. And the Board is only going to rely upon that >> Final Report to see if the IGOs arguments are incorrect (there's >> certainly not going to be any future "rebuttal" opportunity to to >> respond to anything the IGOs say). >> >> In conclusion, I want to see this work behind us as much (if not more) >> as everyone else. But, I do want to make sure that the Final Report is >> of high quality, and I don't see that happening in the next week >> (especially given Mary and Petter's most recent responses). >> >> But, feel free to convince me I'm wrong on this. Give me some new >> information or insight I'm missing. Or, acknowledge the hard truth >> that we should take the 3 or 4 weeks to get this done by the July GNSO >> Council meeting. (and that's with *continuation* of weekly calls, and >> active participation on the mailing list, to get the edits done; i.e. >> don't just add 3 or 4 weeks, and then take a leisurely pause and do >> nothing for several weeks, setting up another last-minute rush job in >> the first week of July; i.e. we should be working through things >> during the ICANN meeting, and setting up calls now, and having rapid >> turns on new/update language, so we can cross the finish line and not >> procrastinate). >> >> Sincerely, >> >> George Kirikos >> 416-588-0269 >> http://www.leap.com/ >> >> >> On Sun, Jun 10, 2018 at 6:35 AM, Mary Wong <mary.wong(a)icann.org> wrote: >>> Dear George, >>> >>> I am sorry to hear that you find the staff work to be sloppy, shoddy and imprecise, and that you believe we have been nonchalant in how we have approached our duties with respect to this PDP. I hope you will permit me, as the senior staff member supporting this group, to say that I believe we have tried to discharge our duties as professionally and competently as possible in the circumstances. As I mentioned in my last email to the Working Group, Steve and I will be working with Petter and Susan to ensure that concerns, agreements and disagreements are captured and discussed appropriately, and the draft Final Report updated in accordance with GNSO rules and practice. >>> >>> Best regards, >>> Mary >>> >>> On 6/10/18, 12:32, "Gnso-igo-ingo-crp on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of icann(a)leap.com> wrote: >>> >>> [For those I've cc'd on this email, see: >>> >>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/date.html >>> >>> and >>> >>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001238.html >>> ("initial designations document" is attachment is at very end of the >>> page) ] >>> >>> I am incredulous at Mary and Steve's nonchalant response to the email >>> thread, seemingly ignoring the fact that the document that was sent to >>> the mailing list today was replete with errors. I had thought that >>> this was a product solely of Petter's creation, but it looks like >>> there's blame to go around --- the metadata of the document that was >>> sent to the list shows the "author" was "Mary Wong". So, it appears >>> that the document had received multiple views by them, and even after >>> this email thread, it seems it's "business as usual" at their end, as >>> if nothing is wrong. Truly stunning. >>> >>> Besides the problems that were **already** pointed out, there's the fact that: >>> >>> 1. Mike Rodenbaugh's input was completely ignored! How hard is it to read: >>> >>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001221.html >>> >>> and then go back to: >>> >>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001167.html >>> >>> 2. David Maher's input was completely ignored! His was the very first >>> response at: >>> >>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001214.html >>> >>> and his name is *nowhere* in the document! >>> >>> 3, Zak and Nat are listed as *supporters* of Option #3 (i.e. the >>> arbitration), when they were against: >>> >>> Zak: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001225.html >>> >>> "I understand *Option 3* and appreciate the objective and rationale behind >>> it, although I cannot support it in its present form. >>> >>> Nat: https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001228.html >>> >>> "I write in support of Zak's positions, and add the following comments- >>> >>> *Option #3* - if a procedure was created that genuinely resulted in >>> transfers only in cases of blatant cybersquatting, and that adequately >>> protected the rights of domain investors - which the UDRP does not - then I >>> would be open to giving it strong consideration." >>> >>> It's very odd to count that as "support" for Option #3 -- that's not >>> how I read it at all, given Nat (and Zak) supported Option #1. >>> >>> 4. there could be even more errors (i.e. folks should double-check >>> what was listed in that document) >>> >>> Does anyone truly believe that, in a week (remember, the "deadline" is >>> supposedly June 17) we can (a) fix all the errors in the designations >>> (b) have time for objections (i.e. the iterative process in section >>> 3.6 of the working group guidelines), (c) review a draft final report >>> (there were long sections missing), (d) submit comments/amend that >>> draft final report, (e) agree to all the relevant changes for the >>> final report, (f) leave time for those who want to make minority >>> statements (which they can't really do until the final report is close >>> to finalization). >>> >>> The most recent draft final report was from May 9: >>> >>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001164.html >>> >>> and there's really very little good text discussing recommendation #5 >>> (i.e. capturing the full debate that took place, pros/cons, etc., so >>> that a reader of the report could actually understand them). Go look >>> at page 44 to 48 -- is that it? It's mostly spent just listing the >>> options, and then a whole bunch of process stuff, but nothing that >>> would lead a reader to understand why this was debated for over a >>> year. There's obviously other sections that need to be fixed too. >>> >>> Remember, there's only *1* call scheduled (this Tuesday), and then no >>> other calls are scheduled. >>> >>> Normally, there's a 2 week clock that *begins* when a close-to-final >>> draft final report is circulated, *along* with the specification of >>> the "initial designation levels" (which Petter only provided a few >>> hours ago) -- see the examples of past PDPs I mentioned at the top of >>> my earlier email: >>> >>> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001219.html >>> >>> If we had a 2 week clock that started when we actually receive a new >>> draft, then that might be reasonable. Then, maybe another week to >>> finalize edits. But, this would be with the draft document being >>> actively updated, and folks actively submitting comments. I don't see >>> how that would happen, given that folks are now also getting ready for >>> the upcoming ICANN meeting. >>> >>> I asked repeatedly that we keep up our weekly calls, so we could drive >>> the work forward, but it didn't happen. Go look at the wiki -- we had >>> a call April 19, May 10, May 25, and that was it! Huge gaps of wasted >>> time, where we should have been doing what we're now asked to do in a >>> single week. >>> >>> Anyhow, if folks believe we can finish everything in a week, that >>> normally takes three or four weeks, convince me. I'm willing to put in >>> the work do so, but I can't do it all. That means people actively >>> reading the reports, agreeing *swifly* to edits (obviously takes much >>> longer if there is debate about the changes) >>> >>> Otherwise, I think it's best we aim for the July GNSO Council meeting >>> (July 19th, documents due July 9th) for finalization of our work. This >>> would still require weekly calls, to get things edited properly. >>> >>> I'm going to bed, but I'll wait and see if anyone can convince me by 4 >>> pm Toronto time on Sunday (different time zones, so some of you might >>> fix that document Petter circulated, we might see a draft final report >>> to review, who knows). At that time, I'll decide whether to formalize >>> this. >>> >>> NB: If I do invoke a section 3.7 appeal, it's not intended to *stop* >>> the coming call on Tuesday, or stop any of the work we're doing. It's >>> only intended to prevent a half-baked unreviewed/unedited document to >>> be sent to GNSO Council a week from now -- we'd still work on that, >>> regardless of the outcome of the Section 3.7. I'll make myself readily >>> available to Petter/Susan/Heather so they can decide things quickly. >>> >>> My preference would be that Susan and Heather take a look at the >>> shoddy work represented by that document we saw a few hours ago, >>> replete with errors, and realize that folks really need to raise the >>> standards of the output being produced. Imposing an artificial >>> deadline isn't good for quality control. >>> >>> Sincerely, >>> >>> George Kirikos >>> 416-588-0269 >>> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&… >>> >>> P.S. Kudos to Reg for stepping up and offering to do her own summary >>> of the feedback on Sunday morning (I intend to do the same, >>> independently). >>> >>> >>> >>> On Sat, Jun 9, 2018 at 10:35 PM, Mary Wong <mary.wong(a)icann.org> wrote: >>> > Dear all, >>> > >>> > Thank you to all who have weighed in with their views as to the various proposed policy recommendations and the six options relating to immunity. This note is being sent to remind everyone that the consensus call process is not a formal voting process. As Working Group chair, Petter had sent his views as to the initial designations of consensus (based on the standard methodology outlined in the GNSO Working Group Guidelines) and staff will work with him and Susan to ensure that the group's concerns, agreements and disagreements, if any, are captured and discussed as appropriate. >>> > >>> > Staff is also working on updating the draft Final Report with some of the suggestions made that seem consistent with the overall discussions and agreements reached. We hope to circulate an update very soon. >>> > >>> > Thanks and cheers >>> > Mary & Steve >>> > >>> > On 6/10/18, 08:02, "Gnso-igo-ingo-crp on behalf of Reg Levy" <gnso-igo-ingo-crp-bounces(a)icann.org on behalf of rlevy(a)tucows.com> wrote: >>> > >>> > I agree that the collection of votes appears to indicate support where the emails I saw did not indicate support and consensus in some places where there should be divergence. Also, although some people only voted for (or against) certain options, most weighed in on all options, which doesn’t appear reflected in the report. I’ll try to do a summary in the morning of the “votes”. >>> > >>> > Reg Levy >>> > (310) 963-7135 >>> > >>> > Sent from my iPhone. >>> > >>> > > On Jun 9, 2018, at 16:13, George Kirikos <icann(a)leap.com> wrote: >>> > > >>> > > P.S. An obvious error, for Recommendation #4. I'm listed as the only >>> > > person against subsidies for IGOs. That's incorrect, given Reg was >>> > > *vehemently* against that recommendation too: >>> > > >>> > > https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001234.html >>> > > >>> > > "I am also vehemently opposed to any subsidization of any party's costs." >>> > > >>> > > Not only did she write that orally, she made that unequivocally clear >>> > > on the phone calls. Go check the recordings/transcripts (or she might >>> > > want to weigh in again). >>> > > >>> > > Anyhow, it's 7 pm on a Saturday night, and I have a life. Others >>> > > can/should weigh in as they please, but this is another sloppy effort >>> > > that needs to get fixed before it ever gets to GNSO Council. >>> > > >>> > > I'm sympathetic to the fact that Petter appears to have worked alone >>> > > on this (although, I thought Susan and/or staff would have been part >>> > > of the team assisting, given the section 3.7 appeal and her higher >>> > > profile at this point as liaison, and perhaps the greater scrutiny >>> > > that would be expected), and there's a time crunch. But, that time >>> > > crunch wasn't imposed by me. Do we want to do things fast, or do we >>> > > want to do it right? >>> > > >>> > > I want to stress that I'm not trying to change anyone's positions --- >>> > > I just want to make sure we accurately capture everyone's >>> > > positions/analysis and accurately capture the correct consensus >>> > > designation levels. >>> > > >>> > > Sincerely, >>> > > >>> > > George Kirikos >>> > > 416-588-0269 >>> > > https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&… >>> > > >>> > > >>> > > >>> > >> On Sat, Jun 9, 2018 at 6:55 PM, George Kirikos <icann(a)leap.com> wrote: >>> > >> Hi folks, >>> > >> >>> > >> 1) First off, it's entirely incorrect to call those the Results of the >>> > >> Consensus call. They're the initial designation levels of consensus, >>> > >> and are open to challenge and further revisions via the iterative >>> > >> process of Section 3.6 of the Working Group Guidelines. The initial >>> > >> designation levels are accompanied with a draft final report ---- we >>> > >> should be given the draft final report, too, to review, ASAP. *That's* >>> > >> what starts the true "Consensus Call" as per the working group >>> > >> guidelines, i.e. the Draft Final Report + the Initial Designation >>> > >> Levels. >>> > >> >>> > >> 2) Secondly, I noticed Jim Bikoff sent an email a few minutes ago >>> > >> which appeared to change his support? i.e. on June 5, 2018 he wrote: >>> > >> >>> > >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001217.html >>> > >> >>> > >> "On the six policy options for a possible Recommendation Five, I can >>> > >> support Option Four but only if Option One does not receive enough >>> > >> support." >>> > >> >>> > >> but then a few minutes ago, he wrote: >>> > >> >>> > >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001240.html >>> > >> >>> > >> "Also I do not support any of the policy options except No. 4." >>> > >> >>> > >> I don't understand what's going on there. >>> > >> >>> > >> 3) Thirdly, it's pretty obvious some of the results are misstated, >>> > >> e.g. my interpretation of Jim's June 5, 2018 email would have >>> > >> prioritized Option #1, but then Option #4 if there was no consensus >>> > >> for Option #1. [although, now today's email seems to change that] >>> > >> >>> > >> When Reg wrote: >>> > >> >>> > >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001234.html >>> > >> >>> > >> I'd interpret it the same way, i.e. Option #1 first, then only #4 if necessary. >>> > >> >>> > >> In other words, the way Petter's table has summarized things, it's >>> > >> "binary". Contrast this with the much more detailed analysis I did >>> > >> last time (this is based on the prior thread about public display of >>> > >> possible consensus, and hasn't been updated yet): >>> > >> >>> > >> https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001172.html >>> > >> https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spread… >>> > >> >>> > >> where it's not binary. I plan to redo that kind of spreadsheet with >>> > >> the newer responses at some point. >>> > >> >>> > >> The same goes for Recommendation #2 where only 4 folks' input is >>> > >> indicated, and thus it's showing "divergence"??!!?? i.e. I'm not >>> > >> against that recommendation --- I just want the language corrected. >>> > >> i.e. I'm against it as written, but only because staff has continually >>> > >> been imprecise. Furthermore, I think some people's silence on the >>> > >> issue isn't "dissent" -- it might actually be support (i.e. they might >>> > >> be relying on their past input on issues, and not just their most >>> > >> recent responses in the past 2 weeks). >>> > >> >>> > >> Anyhow, this is a mess. I'll have more detailed thoughts and analysis >>> > >> later, but just wanted to put these out to get the discussion going. >>> > >> >>> > >> This is *exactly* why we should have kept up with the weekly phone >>> > >> calls, by the way! This is entirely the kind of thing that could have >>> > >> been avoided, had the lines of communication been kept active. Now we >>> > >> have a truncated and artificial deadline to fix this all up, or be >>> > >> compelled to argue about "process" all over again (i.e. another >>> > >> Section 3.7 disputing the results, blah blah blah). Let's try to work >>> > >> hard and fix this mess, so we don't have to do that again. >>> > >> >>> > >> Sincerely, >>> > >> >>> > >> George Kirikos >>> > >> 416-588-0269 >>> > >> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&… >>> > >> >>> > >> >>> > >> >>> > >> On Sat, Jun 9, 2018 at 6:00 PM, Petter Rindforth >>> > >> <petter.rindforth(a)fenixlegal.eu> wrote: >>> > >>> Dear All WG Members, >>> > >>> >>> > >>> Thank you for participating in our formal consensus call. >>> > >>> >>> > >>> I have studied your "votes" and comments, and made a summary at the attached >>> > >>> document, to discuss further on Tuesday. >>> > >>> >>> > >>> For your information, as informed in the GNSO Working Group Guidelines: >>> > >>> >>> > >>> Full consensus: when no one in the group speaks against the recommendation >>> > >>> in its last readings. This is also sometimes referred to as Unanimous >>> > >>> Consensus. >>> > >>> >>> > >>> Consensus: a position where only a small minority disagrees but most agree. >>> > >>> >>> > >>> Strong support but significant opposition: a position where while most of >>> > >>> the group supports a recommendation, there are a significant number of those >>> > >>> who do not support it. >>> > >>> >>> > >>> Divergence: also referred to as No Consensus - a position where there isn't >>> > >>> strong support for any particular position, but many different points of >>> > >>> view. Sometimes this is due to irreconcilable differences of opinion and >>> > >>> sometimes it is due to the fact that no one has a particularly strong or >>> > >>> convincing viewpoint, but the members of the group agree that it is worth >>> > >>> listing the issue in the report nonetheless. >>> > >>> >>> > >>> Minority View: refers to a proposal where a small number of people support >>> > >>> the recommendation. This can happen in response to a Consensus, Strong >>> > >>> support but significant opposition, and No Consensus, or can happen in cases >>> > >>> where there is neither support nor opposition to a suggestion made by a >>> > >>> small number of individuals >>> > >>> >>> > >>> >>> > >>> 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 >>> > >>> >>> > >>> >>> > >>> 5 juni 2018 19:02:40 +02:00, skrev Andrea Glandon >>> > >>> <andrea.glandon(a)icann.org>: >>> > >>> >>> > >>> Dear all, >>> > >>> >>> > >>> >>> > >>> >>> > >>> The IGO-INGO Access to Curative Rights Protection Mechanisms meeting will >>> > >>> take place on Tuesday, 12 June 2018 at 16:00 UTC for 90 minutes. >>> > >>> >>> > >>> 09:00 PDT, 12:00 EDT, 18:00 Paris CEST, 21:00 Karachi PKT, (Wednesday) 01:00 >>> > >>> Tokyo JST, (Wednesday) 02:00 Melbourne AEST >>> > >>> >>> > >>> For other times: https://urldefense.proofpoint.com/v2/url?u=https-3A__tinyurl.com_y865xn8y&d… >>> > >>> >>> > >>> >>> > >>> >>> > >>> Agenda Wiki: https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_… >>> > >>> >>> > >>> Web conference tool: Adobe Connect >>> > >>> >>> > >>> Please join the meeting room here: https://participate.icann.org/crp. If >>> > >>> you’re having trouble joining, please check your plug ins: >>> > >>> https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_icannactest… [tinyurl.com] >>> > >>> >>> > >>> Instructions explaining how to connect the audio in the Adobe Connect room >>> > >>> are attached. A calendar invitation has equally been sent and an ical (if >>> > >>> your inbox doesn’t receive direct calendar invitations) is available here as >>> > >>> attachment for you to download to your calendar. >>> > >>> >>> > >>> >>> > >>> >>> > >>> If you require a dial-out or to send apologies (do not send to full working >>> > >>> group) please send an email request with your preferred contact number to >>> > >>> gnso-secs(a)icann.org >>> > >>> >>> > >>> >>> > >>> >>> > >>> If you cannot join the Adobe Connect room, we recommend you connect to the >>> > >>> Verizon audio bridge via telephone. Please see the Verizon dial in numbers >>> > >>> and participant passcode below. >>> > >>> >>> > >>> >>> > >>> >>> > >>> Please let me know if you have any questions. >>> > >>> >>> > >>> >>> > >>> >>> > >>> Thank you. >>> > >>> >>> > >>> Kind regards, >>> > >>> >>> > >>> >>> > >>> >>> > >>> Andrea >>> > >>> >>> > >>> ______________________________________________________________________ >>> > >>> >>> > >>> >>> > >>> >>> > >>> 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 >>> > >>> >>> > >>> >>> > >>> >>> > >>> >>> > >>> >>> > >>> >>> > >>> _______________________________________________ >>> > >>> Ntfy-gnso-igo-ingo-crp mailing list >>> > >>> Ntfy-gnso-igo-ingo-crp(a)icann.org >>> > >>> https://mm.icann.org/mailman/listinfo/ntfy-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 >>> > >>> > _______________________________________________ >>> > 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 4

Updated recommendations / consensus levels document
by Steve Chan June 21, 2018

June 21, 2018

Dear WG Members, Staff has updated the Consensus Designations document, which you will find attached. These suggested edits are based upon the discussions on the 21 June call and the action items captured and reflected below. If you have any questions or concerns, or believe the suggested edits do not properly reflect discussions held, please do let us know. Best, Steve & Mary Action Items: Rec 1: - 1(b) - If moved to 3, make sure explanatory text is consistent. - If moved, staff to circulate proposed Rec 4 language changes to the WG [COMPLETE – not moved] Rec 3: - Remove language, "...such that any claim of jurisdictional immunity made by an IGO in respect of a particular..." [COMPLETE] - Include Paul T's language in rec 3 (see email) [COMPLETE] - Staff to circulate proposed Rec 3 language changes to the WG [COMPLETE] Rec 4: - Change to consensus [COMPLETE] - Include the note in the rec language itself [PENDING agreement on language] - [add language about consulting community]? [PENDING agreement on language] - [add language to note that no WG members are in favor of subsidies]? [PENDING agreement on language] - Staff to circulate proposed Rec 4 language changes to the WG [PENDING agreement on language] Rec 5: - All options will be included in the body of the text to ensure a full record of discussions [PENDING draft of Final Report language] - (Partially because of consensus for Option 1) - change Option 4 to Strong Support but Significant Opposition [COMPLETE] Final Report - Prepare red-line Final Report, target 2 July or earlier [PENDING] Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

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Recordings, attendance & AC chat from the IGO-INGO Access to Curative Rights Protection Mechanisms call on Thursday, 21 June 2018 at 16:00 UTC
by Michelle DeSmyter June 21, 2018

June 21, 2018

Dear All, Please find the attendance and AC chat attached and the MP3 and AC recording below for the IGO-INGO Access to Curative Rights Protection Mechanisms held on Thursday, 21 June 2018 at 16:00 UTC. MP3: https://audio.icann.org/gnso/gnso-igo-ingo-crp-pdp-21jun18-en.mp3 AC Recording: https://participate.icann.org/p67o6coy3hp/ 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…> ** 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/ZIYpBQ Kind Regards, Michelle DeSmyter

1 0

IGO-INGO; How to finalize our work and identify level of consensus
by Petter Rindforth June 21, 2018

June 21, 2018

Dear Working Group members, In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following: (1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback; (2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and (3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point. On consensus levels, and based on our call earlier this week and the more recent list discussions: Recommendation 1: Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing). Recommendation 2:Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights). Recommendation 3: Consensus Recommendation 4:Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort). Recommendation 5/Options 1-6 (which we can renumber/title in the Final Report to avoid confusion): Option 1 – Consensus or Strong Support but Significant Opposition Option 2 – No Consensus/Divergence Option 3 – Minority View (Consensus Against) Option 4 – Consensus or Strong Support but Significant Opposition Option 5 – No Consensus/Divergence Option 6 – Strong Support but Significant Opposition On reconciling Options 1 & 4: If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again. Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1). For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance. On Minority Statements: 1)As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report. 2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do). Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online! Best regards, 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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Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus
by Paul Keating June 21, 2018

June 21, 2018

While Phil is certainly correct regarding a post-UDRP US action, such is not the case in others. In Luxembourg and France, for example, the courts treat it as an “appeal” of “sorts”. Nevertheless, the fact remains that courts are not bound by the Policy and will make their decision based upon their respective national laws and any controlling precedent. I nevertheless strongly believe that the MJ declaration does constitute a waiver given its clear language and stated intent. 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: Thursday, June 21, 2018 at 6:08 PM To: "jay(a)digimedia.com" <jay(a)digimedia.com> Cc: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus No Jay, I would not. It is not an appeal because it is not a review of whether the original UDRP decision was correct. It is a new and independent action to determine whether the domain is or is not in violation of applicable law in the jurisdiction where the case was filed. The UDRP is relevant only on the question of whether the IGO waived immunity from a judicial action brought in the wake of the UDRP decision. The fact that there is a single point of connection between the UDRP and the lawsuit does not transform the latter into an appeal, in my opinion. 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 From: Jay Chapman [mailto:jay@digimedia.com] Sent: Thursday, June 21, 2018 11:58 AM To: Corwin, Philip <pcorwin(a)verisign.com> Cc: mary.wong(a)icann.org; gpmgroup(a)gmail.com; gnso-igo-ingo-crp(a)icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Thanks, Phil. Wouldn't you agree that, regardless of the term used to describe, it is an appeal in substance - as the registrant's property is already subject to be taken from the registrant? De novo simply refers to the standard of review - the court will take a fresh look without deference to the UDRP. Sincerely, Jay Chapman On Thu, Jun 21, 2018 at 10:24 AM, Corwin, Philip via Gnso-igo-ingo-crp <gnso-igo-ingo-crp(a)icann.org> wrote: Thanks Mary. In regard to this – The fundamental point of substantive [dis]agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled. Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may not be the case. I would suggest that it is absolutely not the case. While follow-up judicial filings by UDRP-losing registrants are loosely referred to as an “appeal”, it is in fact well understood that they are de novo proceedings that are decided independently of the prior DRP on the basis of relevant statutes and case law, not the UDRP standard. While I can’t possibly speak to all jurisdictions, in the US the registrant would file the action under the ACPA, the IGO would then seek dismissal on grounds of immunity, and the registrant would then present evidence against that motion based upon a claim that the IGO had waived immunity when it brought the UDRP action with knowledge of the mutual jurisdiction provision. The court would then decide whether to dismiss the case for lack of jurisdiction over one of the parties, or let it proceed based on prior waiver of immunity. The court case is an independent judicial action initiated by the domain registrant, with UDRP policy staying effect of the prior decision until the court case is decided or dismissed. 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 From: Mary Wong [mailto:mary.wong@icann.org] Sent: Thursday, June 21, 2018 11:08 AM To: Paul Tattersfield <gpmgroup(a)gmail.com>; Corwin, Philip <pcorwin(a)verisign.com> Cc: gnso-igo-ingo-crp(a)icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Apologies, we of course meant “fundamental point of DISAGREEMENT”. Thank you. From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Mary Wong <mary.wong(a)icann.org> Date: Thursday, June 21, 2018 at 11:05 To: Paul Tattersfield <gpmgroup(a)gmail.com>, "Corwin, Philip" <pcorwin(a)verisign.com> Cc: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Hello everyone, As Paul had requested in a previous message that staff not merely reproduce excerpts from Professor Swaine’s memo, please allow us to provide a response. The fundamental point of substantive agreement seems to be whether it is the IGO that can be considered to have initiate the legal proceedings when it first files a complaint under the UDRP or URS. Our understanding of Paul’s position is that he believes this to be the case, and as such the IGO must necessarily be considered to have waived any jurisdictional immunity to which it may otherwise be entitled. Our understanding, however, of legal process and of what we believe to have been Professor Swaine’s assumption, is that this may not be the case. The UDRP and URS are mandatory administrative proceedings that are separate from, and independent of, the judicial process. As such, when a losing respondent files suit in a national court, it is up to that court to determine whether and how to give any deference to the UDRP under its national laws (as well as consider if, to the extent the IGO decides to claim jurisdictional immunity from that court, such an immunity claim will be permitted under its national laws). The court filing by the losing respondent is not a direct appeal from the UDRP panel decision, and thus not a continuation of the UDRP proceeding but may be considered a separate legal filing. While many jurisdictions may indeed rule that an IGO, having agreed to Mutual Jurisdiction, will therefore have given up any immunity, this is not necessarily or universally the case (as Professor Swaine acknowledged). To give a specific example, we believe that decisions in civil cases in Korean courts concerning enforcement of UDRP decisions are decided under the relevant Korean domestic laws based on Korean Supreme Court jurisprudence. Best regards, Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Paul Tattersfield <gpmgroup(a)gmail.com> Date: Thursday, June 21, 2018 at 10:24 To: "Corwin, Philip" <pcorwin(a)verisign.com> Cc: "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree. Its competence not office that matters, one of the big advantages of the multistakeholder model is it can allow The Emperor’s New Clothes situations to come to light that would otherwise remain clothed in expert opinion. It is not helpful to simply say I am wrong. You should at least try to show why what I have said is wrong, as I have clearly, concisely and precisely done with the Swaine errors. I’ll reply to each of the other points you raise, but it does rather play into a ruse to refuse to address the core issue and everyone then gets obstructed and deffered to anything but the question asked. Which then of course opens up the opportunity for a myriad of other tangential but ultimately fruitless lines of engagement thereby helping avoid the core issue for even longer. There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court. We are here to make an existing framework more equitable not litigate it. What we are supposed to be doing is drafting the equivalence of statute. We need to be clear and concise, well intentioned and precise. As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. The problem is Swaine gives the impression it is relevant to what the working group has been asked to consider – whereas really, its irrelevant complexity confuses rather than clarifies. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council. In your former role as co-chair this is called bias. This is one of the main reasons why this working group reached the point where it almost collapsed and we now have a significantly weaker final report which was predominantly drafted with the intention of supporting your preferred option. This is very bad because it fails to fully articulate the sound reasons behind the final consensus positions. The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval. The multistakeholder working group model is about building and supporting consensus and it isn’t helpful when those leading a group will only contribute positively when it furthers their own agenda. We could easily have easily improved process to help IGOs & INGOs and at the same time improved it for registrants too, instead you chose to lead the working group on path to try and force through at all costs the ridiculous #3. - Very sad and not what the multistakeholder model was ever intended for. Prove me wrong show me why my proof is wrong :-) Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Tue, Jun 19, 2018 at 1:58 PM, Corwin, Philip <pcorwin(a)verisign.com> wrote: Paul: You claim you have proven in a single page that a 25-page analysis of the issue of IGO immunity in the context of judicial appeal of a UDRP decision, written by a professor of and expert in international law, is wrong. I disagree. There is no such thing as proof in application of regulation and law to specific fact situations. The law is not black and white but many shades of grey. The law is not a math equation with one single answer that can be proven, or a science experiment that can be replicated to prove a theorem. That is why every modern judicial system has a supreme judicial body to resolve the inconsistencies between lower court decisions applying the same law to similar facts. And even then, the “correct” answer can be determined by a single vote, as evidenced by the many 5-4 split decisions of the US Supreme Court. As I’ve already pointed out, the Swaine memo does not dictate any particular policy recommendation outcome, and parts of it can be relied upon by proponents of option 1 who believe that the UDRP’s reference to mutual jurisdiction trumps all other considerations. I respectfully dissent from that position and support option 3 because I believe that it is important to restrain ICANN from attempting to curb the legal rights of any party to a UDRP, registrant or IGO. I also support option 3 because I believe it has some chance of becoming ICANN policy and resolving this matter, while I cannot envision option 1 ever being approved by the ICANN Board even if it is passed forward from Council. The Swaine memo is an informed and nuanced discussion of the central issue before this WG. It should be retained in our Final Report to inform Council and the Board of the complex legal issues relevant to the matter of IGO access to CRP, both when considering this WG’s Final Report and later on -- when this issue is revisited after it becomes clear that we have not produced a policy option acceptable to the GAC and IGOs or capable of achieving Board approval. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way [maps.google.com] Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Paul Tattersfield [mailto:gpmgroup@gmail.com] Sent: Tuesday, June 19, 2018 3:35 AM To: Corwin, Philip <pcorwin(a)verisign.com> Cc: petter.rindforth(a)fenixlegal.eu; gnso-igo-ingo-crp(a)icann.org Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, Yes that’s right. and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. Wrong - you are not understanding what I wrote and then attributing your own conclusion to me. Go read my proof and show me where I am wrong I don’t believe you can. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario. Outside of the original co-chairs there is little disagreement, you should have the grace to respect that position. Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. It is only the forum that makes the domain registrant a “plaintiff” on a claim that an IGO chose to initiate. That is the quirk of process. It is still the same principle matter. Whether the IGO chose to file a URDP or judicial proceedings the IGO is choosing to INTIATE proceedings. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out. The huge mistake Professor Swaine made was to analyze in great depth the scenario where an IGO is defending a claim and mistakenly assume that any rights to jurisdictional immunity there could be “transferred/applied” to the scenario where an IGO is initiating a claim. My proof pinpoints very precisely where and how he made that error in his reasoning on page 8 of his memo. The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement. Swaine can never be relevant because the working group has not considered the case where an IGO is defending a UDRP brought against it by a TM owner. Swaine’s complexity confuses rather than clarifies and if you really must include it stick it in your minority report – it’s junk It’s quite simple Phillip go and read my proof (it’s less than a page) and if you believe it is wrong show me where it is wrong. I don’t believe you can that is why you are squandering everyone’s time (again). 1 Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) 2 Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Mon, Jun 18, 2018 at 1:30 AM, Corwin, Philip <pcorwin(a)verisign.com> wrote: Paul: With all respect, in regard to your statement, “I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum”, and without even delving into the quality of your analysis, the fact that you believe an IGO would never succeed in an immunity defence in a judicial appeal from a UDRP filed by the losing registrant would not prevent any judge in any court from finding to the contrary and dismissing the case. The disagreement within this working group is over what should happen in the event of that rare but nonetheless possible scenario. Prof. Swaine was asked to inform us as to how a court would deal with such an immunity claim and the likely response from plaintiff domain registrant that the IGO had waived its immunity by filing a UDRP with knowledge of the mutual jurisdiction clause. His memo discussed the different analytical approaches that courts employ as well as the interplay with other factors, such as national laws addressing sovereign immunity. As Petter noted, he concluded that many courts would determine that immunity had been waived, but that case dismissal by some courts could not be ruled out. The Swaine memo does not dictate any particular policy outcome within this WG, and it can likely be cited by those with differing views on the key issue before us. It informed our consideration of the questions before us and should be included within the final report as a reference point, and only as that. If you think anything in it is wrong you are free to include that in a minority statement. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way [maps.google.com] Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Tattersfield Sent: Sunday, June 17, 2018 2:55 PM To: petter.rindforth(a)fenixlegal.eu Cc: gnso-igo-ingo-. <gnso-igo-ingo-crp(a)icann.org> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Dear Petter, The problem is the issue I am raising is overarching – I have shown very clearly why the IGOs are never entitled to immunity after they have chosen to initiate proceedings in ANY forum. I have also shown very precisely where Swaine went wrong in his reasoning. Petter wrote: “And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: …” This misses the point the IGOs are choosing to initiate proceedings. Professor Swaine has analysed the scenario where an IGO is defending an initial action and then assumed incorrectly that any immunity rights enjoyed where an IGO is defending an action can be “transferred/allocated/applied” to the scenario where an IGO brings an action as the plaintiff (or claimant). When the IGO is the initial plaintiff (or claimant) it is NEVER entitled to jurisdictional immunity. I have responded to all of Mary’s points in this thread and in more detail to the other thread where Paul K. supported my concerns and David drew attention to the United Nations Convention on Jurisdictional Immunities of States and Their Property treaty. Further I have reached out to as many people as possible inviting them to refute my reasoning and so far no one has been able to show how I am even slightly wrong including people who have represented IGO interests. Please show me how my proof is anyway wrong…. Yours sincerely, Paul. Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) On Sun, Jun 17, 2018 at 5:29 PM, Petter Rindforth <petter.rindforth(a)fenixlegal.eu> wrote: Dear Paul and WG Members, As you all know, we had a call on February 16, 2016 to discuss Prof Swaine’s memo, and it was further discussed during 2016. I also tried to see from your (Paul) e-mails of December 2016 (especially of December 14, 2016), when we discussed the details of our Draft Initial Report that Mary had sent to our WG, but I could not find any specific note there by you on the report, other than suggestions to fix some typos in our DIR. Prof Swaine’s memo and report is in fact a part of our work and report, to refer to. And I cannot see that Prof Swaine clearly states that IGO’s have the right to refer to their immunity. Instead, he states several times that the fact that an IGO has accepted a URS or UDRP case, is also likely to be seen as a waiver of their immunity. This seems especially related to UN: “Article 2(2) of the General Convention, the UN’s absolute immunity from legal process (other than relative to execution) may be expressly waived in particular cases. National law may also resolve the matter. For example, the IOIA provides relevant IGOs with immunity (on the same terms as afforded states) “except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” What Prof Swaine however also points out, is the fact that all national law worldwide is not clear, and further that it is also up to each national court to decide to accept immunity or not, and especially IGO's that are not UN related has not the same exact position. His conclusion was that the topic is not 100% clear (which ofcourse IGO's does not agree upon, as the same with you - however with two completely different views). Option 3 has covered such possible situation, and made sure that also in (possible rare) cases where a national court accept immunity, the domain holder can at least have possibility to get the case decided by arbitration. (= This was my short personal note, knowing that the majority of the WG does not agree with establishing such solution). To summarize: We have Prof. Swaine’s report to refer to and that has for long time been a part of, and reference, related to our full report. Paul, I appreciate your work with comments, and recommend that you prepare a Minority Statement in regard to the Swaine memo. Also, a reminder to other WG members that support Options with no majority from the WG, please prepare your Minority Statements. Finally: Please focus on our Final Report and keep the suggestions within our WG mailing list. We are close to make a conclusion on each Recommendation and Option. It is better for us all to effectively conclude our work now in a friendly manner, and create our Final Report, that can then be further discussed by others. Best regards, 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 [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 [fenixlegal.eu] Thank you 15 juni 2018 13:28:59 +02:00, skrev Paul Tattersfield <gpmgroup(a)gmail.com>: Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added): “ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict. Wrong – Immunity is only a defence where an IGO is a defendant NOT a claimant. In the initial claim the IGO is the claimant whether it be a UDRP claim or a judicial claim. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. The choice among these approaches would be material. Yes immunity is complex, very complex, but it is not relevant because the IGO is the initiating the claim. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character. The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not. Wrong, the mutual jurisdiction clause is a separate very high hurdle in a litigation strategy for an IGO. There is no immunity to remain – see above. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. The overall answer, then, is contingent. Wrong – no it isn’t contingent there is no immunity to defend – see above If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis … Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or —in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … How matters unfold from that point will depend on national law. This is a truism but is not relevant because there is no immunity to defend In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, That’s right - that’s what the mutual jurisidiction clause is for, That is how it should be. If you make an allegation and ask a forum to rule on it to you have to be prepared to defend the allegation including counterclaims notwithstanding any immunity to which they otherwise would be entitled.” Wrong – there isn’t any immunity to defend – see above As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is not necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party. Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will not succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions. We trust this is sufficiently clear. If you want to challenge my proof you need show in the text which I have included again below for completeness why I am wrong not quote from the report which based on the errors I am alleging. Looking at what Professor Swaine said: “The scope of IGO immunity would most clearly be at issue if the Mutual Jurisdiction provision were irrelevant and the IGO had not itself initiated judicial proceedings, since that would risk waiving any immunity to which it may be entitled, including to counterclaims.” I think we can all agree that; initiating proceedings waives immunity including counterclaims. “This might be the case, for example, if a domain-name registrant sought a declaratory judgment against an IGO in relation to some actual or potential infringement.” I think we can all agree that; if a TM owner starts proceedings to acquire a domain which an IGO has registered then an IGO would be entitled to use jurisdictional immunity to prevent a hearing taking place. “That scenario, though not otherwise of concern here, does usefully isolate the question as to whether an IGO has a legitimate expectation that it would be entitled to immunity absent the UDRP” I think we can all agree that; the working group has not and will not consider the case where a TM owner starts proceedings against an IGO. Here’s the problem What Professor Swaine has done is say well he’s isolated a situation where an IGO would be entitled to claim an immunity defence absent UDRP so now he’s good to go for the rest of his report on immunity. Wrong. Just because Professor Swaine has identified a situation where an IGO is entitled to claim an immunity defence doesn’t mean he can then apply it to other situations. Proof 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 scenarios. (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 Let’s confirm what is happening with colours: Blue = An immunity defence is good to go Red = An immunity defence is a no-no Applying the logic Professor Swaine has used we have (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 What Professor Swaine is asking the reader to accept is the right to an immunity defence can be applied to both (a) and (b) scenarios and this can not be right because Absent UDRP we have (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 So the correct position at UDRP is (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 Quite simply the IGOs are never entitled to jurisdictional immunity after initiating proceedings. On Fri, Jun 15, 2018 at 11:02 AM, Mary Wong <mary.wong(a)icann.org> wrote: Hello again Paul and everyone, Staff directs your attention to those parts of the memo where Professor Swaine writes as follows (emphasis added): “ …the situation raises at least two distinct immunity issues. The first is whether, in principle, an IGO would enjoy immunity from judicial process with respect to name-related rights it might assert in the UDRP proceedings. The answer depends on whether jurisdiction in which the case arises would apply an absolute, functional, or restrictive immunity approach to the IGO in question. That may be hard to predict. In the United States, for example, unless an IGO benefits from broader treaty protections—as the United Nations, but not its specialized agencies, does, because the United States is only party to a treaty governing the former’s immunity—the question is addressed by the International Organizations Immunities Act (the IOIA), but some courts interpret the statute as establishing absolute immunity and others view it as establishing restrictive immunity only. The answer is a bit more straightforward elsewhere, and other states tend to favor either an absolute or a functional approach. The choice among these approaches would be material. If an IGO is entitled to absolute immunity, it would in principle be protected from a suit of the kind in question, and probably under a functional approach as well—because an IGO’s protection of its name is likely to be deemed part of its functions. Immunity is less likely under a restrictive approach, which might regard this as more akin to trademark-related activity that is commercial in character. The second, more relevant, question is whether—in light of an IGO’s assent to Mutual Jurisdiction, by virtue of its initiation of UDRP proceedings (or its registration of a domain name)—its immunity remains. Here, the more likely answer is that it would not. IGOs are capable of waiving their immunity from suit, and if they do so, they may no longer interpose immunity as a defense if another party commences a judicial action falling within the scope of that waiver. The grant of Mutual Jurisdiction should establish such a waiver, just as it would for a state entity otherwise entitled to immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. The overall answer, then, is contingent. If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity to judicial process; if, on the other hand, the Mutual Jurisdiction clause were maintained, as in the status quo, the IGO’s immunity is less germane because it would have been waived. Equitable considerations might influence any judicial analysis … Accordingly, an IGO complainant will have consented to judicial proceedings if a losing respondent wishes to challenge a cancellation or —in a jurisdiction that the IGO will have selected, but from limited choices that the registrant can craft through its choice of registrar and its registering address … How matters unfold from that point will depend on national law. In short, the Mutual Jurisdiction concession means that certain IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled.” As such, Professor Swaine seems to have acknowledged that, in many instances where a losing registrant files suit against a prevailing IGO in a national court, the court is likely to rule that the IGO will have waived its immunity. He also points out that this is not necessarily always the case as it may depend on the approach that national court takes toward the doctrine of IGO jurisdictional immunity. As staff has noted elsewhere, there is no single, universal, unified principle that determines the result across all national courts; and there is no single international treaty that applies to all IGOs and to which all states are party. Thus, Professor Swaine’s expert legal opinion seems to us to be saying that while it is likely that in many jurisdictions an IGO will not succeed in claiming immunity from jurisdiction, this is not to be assumed as a certainty in all jurisdictions globally. It may be a rare case that an IGO succeeds, but it is at least a possibility in a few jurisdictions. We trust this is sufficiently clear. Best regards, Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Paul Tattersfield <gpmgroup(a)gmail.com> Date: Friday, June 15, 2018 at 17:17 To: "petter.rindforth(a)fenixlegal.eu" <petter.rindforth(a)fenixlegal.eu> Cc: "gnso-igo-ingo-." <gnso-igo-ingo-crp(a)icann.org> Subject: Re: [Gnso-igo-ingo-crp] IGO-INGO; How to finalize our work and identify level of consensus Dear Petter, On Swaine I do not believe what you are proposing is acceptable. This isn’t some minor matter for a minority opinion Swaine underpins the whole of the working group’s final report. I have shown very clearly in plain language how Swaine introduces horrendously complex issues which have absolutely no relevance whatsoever to what the working group has been asked to consider. Both Paul Keating & George Kirikos have both indicated they share my concerns that Swaine can never be considered correct on this matter and in the alternative no one has voiced any dissent to the expanded proof I outlined. The only person to offer any comments has been Mary and she did not address the core issue I was raising and has chosen so far not to dispute or comment further on the expanded proof. (For completeness Phillip said he was proud of Swaine) You have chosen not to comment too. Do you also still personally believe what I am saying is wrong and that Swaine can possibly be correct in his findings? If so please can you please explain to the working group how Swaine can possibly be correct because the report fails to adequately acknowledge or address the indisputable fact that IGOs automatically waive immunity every time they commence a legal proceeding? Yours sincerely, Paul. Expanded proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-June/001310.html (.pdf with colours) Original proof http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001202.html (.pdf with colours) On Fri, Jun 15, 2018 at 8:29 AM, Petter Rindforth <petter.rindforth(a)fenixlegal.eu> wrote: Dear Working Group members, In light of the need for us to complete our work, in my role as the Chair, I ask you all to now focus on the task at hand, which is to finalize agreement on the appropriate consensus levels for each recommendation. In this regard, please note the following: (1) I have put the most current, likely consensus levels here in this message and will appreciate further feedback; (2) we need now also to focus on discussing where we want to end up in relation to Option 1 and Option 4, which may be mutually incompatible; and (3) where you have made a suggestion on any specific point/topic but it has not received support, I ask that you consider filing a Minority Statement now rather than continue to argue the point. On consensus levels, and based on our call earlier this week and the more recent list discussions: Recommendation 1: Full Consensus (with additional text in the rationale about why this recommendation was phrased to cover INGOs, and noting that IGOs are covered by the remaining recommendations which nevertheless do not require changing the UDRP or URS beyond what may be necessary to effectuate those additional recommendations – I note that this last caveat may of course not be necessary if the group reaches consensus on Option 4 versus Option 1, as we are currently discussing). Recommendation 2: Consensus (with slight amendment to the recommendation text to reflect “trademark or service mark rights” where we mention “unregistered” rights). Recommendation 3: Consensus Recommendation 4: Strong Support but Significant Opposition (with additional text in the rationale to note that several members are strongly against subsidies of any sort). Recommendation 5/Options 1-6 (which we can renumber/title in the Final Report to avoid confusion): Option 1 – Consensus or Strong Support but Significant Opposition Option 2 – No Consensus/Divergence Option 3 – Minority View (Consensus Against) Option 4 – Consensus or Strong Support but Significant Opposition Option 5 – No Consensus/Divergence Option 6 – Strong Support but Significant Opposition On reconciling Options 1 & 4: If, from the above tentative consensus listing, the group agrees that either Option 1 or Option 4 has sufficient consensus (but not the other), there will not be a conflict. Please therefore weigh in with your thoughts on the current consensus levels for these two options. I have seen some informal notes from WG members that support both Option 1 and Option 4, clarifying that they prefer Option 1 before Option 4, but please make such statements/clarification again. Similarly, if we end up with Strong Support but Significant Opposition for both, we can just transmit both to the Council without the need for further discussion (but possibly with text that can include implementation guidance for Option 1). For Option 1 – this will require a change to the UDRP and URS, so if this is the final consensus position, staff will add draft text to the report with implementation guidance. On Minority Statements: 1) As Susan suggested on the call, Paul Tattersfield may want to consider filing a Minority Statement in regard to the Swaine memo, as despite several emails on the topic over the last month or two and on the Working Group calls, there has not been much support to remove the memo from the report. 2) Similarly, those who support recommendations/options that end up as either No Consensus/Divergence or Minority View should consider preparing Minority Statements (as I believe Phil has already indicated he may do). Thank you to all who are contributing to a productive discussion. I ask that we refrain from questioning others’ credibility or credentials, stop bringing up old threads and posts again, and focus on getting to the final consensus. We had a good, friendly and effective call this Tuesday – let us continue that way also online! Best regards, 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 [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 [fenixlegal.eu] Thank you _______________________________________________ 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

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Updated recommendations text with proposed consensus levels (Re: Proposed agenda for the WG call on 21 June 2018 at 16:00 UTC)
by Mary Wong June 20, 2018

June 20, 2018

Dear Working Group members, Please find attached an updated document where the proposed draft text for each of the likely recommendations has now been updated following Working Group discussions and George’s suggestions that he sent to this list yesterday. Staff has also updated the consensus level designations based on the Working Group’s most recent deliberations. In line with Petter’s reminder to focus on the task at hand (i.e. coming to agreement on the final consensus levels) and in view of the fact that GNSO PDP Final Reports do not attribute support or non-support to specific Working Group members, we have also deleted the names that appeared in the 11 June version of this document. Following the Working Group’s meeting this week and assuming that agreement can be reached on final consensus levels for all recommendations, staff will proceed to incorporate the final recommendations text into an updated Final Report, with corresponding updates and edits as appropriate. In this regard, and to George’s question as to the nature of the changes to Recommendation #3 from the Initial Report to the current version, staff notes that the question whether to retain, amend or delete the original text depended on the progress of the Working Group’s discussions on the immunity question (especially whether specific changes might in fact be needed if Option 1 attains consensus). Thanks and cheers Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Steve Chan <steve.chan(a)icann.org> Date: Wednesday, June 20, 2018 at 13:20 To: "Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp(a)icann.org> Subject: [Gnso-igo-ingo-crp] Proposed agenda for the WG call on 21 June 2018 at 16:00 UTC Dear WG Members, Please find the proposed agenda for the WG call on 21 June 2018 at 16:00 UTC for 90 minutes. 1. Welcome / SOIs 2. Gauging Consensus Level Designations 3. Next Steps (e.g., minority statements, Final Report) 4. AOB For item 2, as noted by Mary, you can expect to see a red-lined document sent separately that captures the changes suggested by George. Best, Steve & Mary Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org<mailto:steve.chan@icann.org> mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<applewebdata://310CAD3E-E244-4690-A938-C2655DD44BDE/learn.icann.org/courses…> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-…>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

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Proposed agenda for the WG call on 21 June 2018 at 16:00 UTC
by Steve Chan June 20, 2018

June 20, 2018

Dear WG Members, Please find the proposed agenda for the WG call on 21 June 2018 at 16:00 UTC for 90 minutes. Welcome / SOIs Gauging Consensus Level Designations Next Steps (e.g., minority statements, Final Report) AOB For item 2, as noted by Mary, you can expect to see a red-lined document sent separately that captures the changes suggested by George. Best, Steve & Mary Steven Chan  Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  steve.chan(a)icann.org mobile: +1.310.339.4410 office tel: +1.310.301.5800 office fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/

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IGO PDP -- suggested text for recommendation language tweaks, and manually generated redline
by George Kirikos June 20, 2018

June 20, 2018

Hi folks, During the last call, Phil suggested a redline of proposed changes would be desirable. I don't own software of my own that does this. I also searched for online tools that do this, but couldn't find anything suitable. But, I did attempt to create such "redline" text manually, and it's attached as a PDP. I started with Recommendation 2, since that was the 'easiest' (i.e. adding 4 words, to restrict things definitively to "trademark and service mark" rights). For Recommendation 1, I reordered and rephrased the existing recommendation slightly, for clarity. I also added the text that I thought should be in a recommendation that no specific new DRP be created for IGOs. Since some would rather keep Recommendation 1 limited only to INGOs, I then offered an alternative, namely adding it into Recommendation 3 instead. Also, I'm not sure if folks noticed, but some text was deleted from Recommendation 3, compared to what appeared in January 2017. I pointed out phrases that we might want to put back, for clarity. I also found a possible error in how Recommendation 3 was worded, relative to the comparable text from January 2017. Back in January 2017, there was some text after a semi-colon (i.e. a separate thought), that somehow got merged now into the prior text, without any semi-colon. So, it doesn't make sense anymore to me. This stuff was non-controversial (i.e. the assignee, licensee, agent procedural guidance), but it kind of got mixed up with other text that was after the semi-colon. Sincerely, George Kirikos 416-588-0266 http://www.leap.com/

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Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo
by Paul Keating June 17, 2018

June 17, 2018

Mary, With all respect, you are very very incorrect regarding the jurisprudence of sovereign immunity. The doctrine does exist in several treaties. Treaties in turn (by definition) constitute the supreme law of each jurisdiction having agreed to them. This is the case in the US just as in other jurisdictions. The doctrine also exists in statutory form in virtually all jurisdictions, including the US. The doctrine is NOT a judicially created doctrine. The APPLICATION of the law (either via treaty or statute) is a function of the judiciary. In common law jurisdictions, the resulting case opinion can be cited as president in other disputes as relevant and if applicable are controlling in any future dispute brought before subservient courts in the same judiciary branch (e.g. In the US, decisions of the US Supreme Court bind all federal courts but they bind State courts only as to matters of federal law - State supreme courts govern those state courts below them in authority with respect to state law matters). The same applies in virtually all, if not all, other countries. In noncommon law jurisdictions prior judicial decisions are informative only but not precedential. I know you are not a lawyer and are trying to help. However, mis-stating the law is in reality not helpful and leads to a great deal of confusion which takes a good amount of effort to rectify. As to Professor Swain, you are confusing two issues namely: Impact when the IGO brings an action as the plaintiff (or claimant) Impact when the IGO is merely a defendant. In the former, the IGO is always deemed to have waived immunity. This is stated in Swain¹s memo. In the latter, the IGO preserves issues of immunity because it did not initiate the process. It can be held to NOT have immunity based on the reason it has been brought into court. In the UDRP context, the IGO initiated the process AND that process expressly contains a right to seek post UDRP litigation remedies. As concerns the Respondent, the right to post-UDRP litigation is an absolute right. As concerns the Complainant (the IGO), post-UDRP litigation remains an option. The Policy clearly provides for the selection of a Mutual Jurisdiction that applies in the event of post-UDRP litigation BUT the selection is make ONLY by the Complainant. There is no provision by which the Respondent agrees to any jurisdiction for post-UDRP litigation. Thus, because the Policy contains an express right for the Respondent to pursue post-UDRP litigation AND contains a MJ selection for that very purpose, it is the NGO who has waived immunity claims. Thus, the post-UDRP litigation is in effect a continuation of the prior UDRP an action brought by the NGO. The issue is far different from that occurring if the domain owner merely initiated litigation to seek declaratory relief (a declaration that the domain name did not infringe). In such a case, it would be new litigation and not a continuation of process. The NGO thus retains any immunity defense it otherwise had. In his memo, Swain (rather in-artfully) switches from one situation to another but does not clarify that the analysis changes depending on the situation. This leads to a confusion as to whether the issue of immunity remains applicable in the context of post-UDRP litigation. I believe this is what is eating at Paul. As to the transfer, I believe Paul is referring to the fact that the UDRP itself has resulted in a decision to transfer a property right from the Respondent to the NGO. The Respondent has the right to suspend the effect of the UDRP decision (transfer of the domain) by timely filing litigation in the MJ. The UDRP decision is then held in abeyance pending the outcome of the post-UDRP litigation. Thus, in effect a transfer of rights has occurred. It is just the carrying out of the actual transfer that has been deferred. I think we can all agree that the Policy was never intended to allow for such post-UDRP litigation but then preclude any remedy to the Respondent because of immunity issues belatedly asserted by the UDRP complainant. Such would undercut the most basic of foundational elements of the policy that the rights to judicial review remain. I hope this helps. @Paul, please chip in if I have made an error above. Paul From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Mary Wong <mary.wong(a)icann.org> Date: Wednesday, June 13, 2018 at 7:19 PM To: Paul Tattersfield <gpmgroup(a)gmail.com> Cc: "Donna.Austin(a)team.neustar" <Donna.Austin(a)team.neustar>, "haforrestesq(a)gmail.com" <haforrestesq(a)gmail.com>, "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org>, "rafik.dammak(a)gmail.com" <rafik.dammak(a)gmail.com> Subject: Re: [Gnso-igo-ingo-crp] [Ext] Re: Question about Professor Swaine's memo > Dear Paul, > > Thank you for following up; that was indeed the staff email I was referring to > on the Working Group call yesterday. > > If you can provide further explanations, staff believes that will be helpful > to the group. For our part (and I note again that we are very cognizant of our > proper role as staff) we simply do not read Professor Swaine¹s memo the same > way that you seem to have. It seems clear to us that Professor Swaine > expressly notes that in a case where it is the IGO that initiates proceedings > (in this case, under the UDRP or URS), it is possible, even likely, that this > will mean it will have waived its jurisdictional immunity because of the > Mutual Jurisdiction clause as currently worded. He does, however, correctly > note that whether or not this will always be the case depends on the > jurisdiction where the respondent chooses to file its case, as that is a > question for that court to rule on. We note further that jurisdictional > immunity is based in customary international law and, although in some cases > has been enshrined as formal legal doctrine in certain international treaties, > remains in many cases judge-made law. > > We also do not understand your statement that there is a ³transfer² of > immunity rights between the two scenarios you mention. We simply do not see > where, when or how that can even happen - they are two separate types of legal > proceedings, and while it is true that in the former scenario the IGO is the > defendant and in the latter it is the plaintiff, as mentioned in the previous > paragraph, Professor Swaine has clearly noted that where the IGO is the > plaintiff/initiator of proceedings it will likely be deemed to have waived its > immunity. More specifically, we do not understand what ³transfer² of legal > rights will have taken place as there are none, especially as jurisdictional > immunity as a legal doctrine does not amount to substantive legal rights that > can be transferred. > > We apologize if we appear to be trying to counter arguments brought forth by > Working Group members since we are not ourselves participants in the group, > but in our role as subject matter advisors we really hope that Paul can > provide clarification. > > Thank you. > > Best regards, > Mary & Steve > > > From: Paul Tattersfield <gpmgroup(a)gmail.com> > Date: Wednesday, June 13, 2018 at 06:57 > To: Mary Wong <mary.wong(a)icann.org> > Cc: "Corwin, Philip" <pcorwin(a)verisign.com>, "haforrestesq(a)gmail.com" > <haforrestesq(a)gmail.com>, "Donna.Austin(a)team.neustar" > <Donna.Austin(a)team.neustar>, "gnso-igo-ingo-crp(a)icann.org" > <gnso-igo-ingo-crp(a)icann.org>, "rafik.dammak(a)gmail.com" > <rafik.dammak(a)gmail.com> > Subject: [Ext] Re: Question about Professor Swaine's memo > > > > Dear Mary, > > In today¹s chat room you mentioned your reply in April to my very serious > concerns about the Swaine Memo. The only email I have on file is the one > below. I can deal with each of the points you raise should you so wish, > however, each of those points are dependant on the incorrect assumption > Professor Swaine made on pages 8 & 9 of his report.(on pages 83 & 84 of the WG > final report) that immunity rights can be transferred between the two > scenarios where the immunity question could come before a court. > > I have detailed below my concerns clearly in colour for the benefit of the > working group so anyone can quickly see where and how the professor relied on > what I believe to be an incorrect assumption and upon which the whole of his > report then incorrectly relies. > > I have researched this issue and I can not find any jurisdiction, on any > matter (not just domain names) in any forum where an IGO would be entitled to > jurisdictional immunity after initiating proceedings. I have asked the working > group if anyone can refute my reasoning several times on the email list and I > raised it on the call prior to Phillip¹s resignation. Each time not a single > person has been able to demonstrate I am in fact incorrect and several people > have indicated they believe I am right. I have discussed this matter with > people with a broad range of interests including people who have represented > IGO interests at ICANN and I can not find a single person who can find any > issue with my reasoning. > > Given the whole of the WG¹s final report is premised on Professor Swaine¹s > assumption being correct I would be very grateful if you can show me why any > of my reasoning in the proof below is not correct and how Professor Swaine can > possibly be right. > > Yours sincerely, > > > Paul > > > https://community.icann.org/pages/viewpage.action?pageId=56131791 > [community.icann.org] > <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pa… > s_viewpage.action-3FpageId-3D56131791&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS > 6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68bsF > aEsNNKlLqZO_hrEY4p0DHiAv1NSw&s=ahWQUHMJaL9LDnMiir5n2aozXA9CcznLOgRXr0OmlM8&e=> > which is marked final and dated 6/17/2016. > > From that document: > ³3. Discussion (Bottom of page 8) > > The core question is whether an IGO is ³entitled to immunity,² but the > baseline assumptions may be disaggregated. The scope of IGO immunity would > most clearly be at issue if the Mutual Jurisdiction provision were irrelevant > and the IGO had not itself initiated judicial proceedings, since that would > risk waiving any immunity to which it may be entitled, including to > counterclaims. 20 This might be the case, for example, if a domain-name > registrant sought a declaratory judgment against an IGO in relation to some > actual or potential infringement. 21 That scenario, though not otherwise of > concern here, does usefully isolate the question as to whether an IGO has a > legitimate expectation that it would be entitled to immunity absent the UDRP. > If such immunity is minimal or uncertain, then any compromises required by the > UDRP loom less large; if the IGO would otherwise be entitled to immunity, > however, its potential sacrifice seems more substantial. > > As explained in Part A, the answer depends. 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. Part B then introduces the complication that any such > immunity may be waived through the Mutual Jurisdiction provision, and > affording such waiver is not the same thing as violating an IGO¹s immunity. > Part C then discusses alternative ways to resolve the situation. ³ > > Green Initiating proceedings waives immunity including counterclaims > Blue Scenario (a) below > Red Transfers those rights of scenario (a) to scenario (b) > > The rest of the memo is then based on the incorrect assumption that rights can > be transferred between the two scenarios. > > > Proof > > 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 > > > Conclusion > > The working group has not considered (a) which hides the fact that in (b) an > IGO is never entitled to jurisdictional immunity after choosing to initiate > proceedings. The incorrect Swaine reasoning introduces irrelevant complexity > which confuses rather than clarifies and should therefore have no place in the > working group¹s final report. > > > [for those without colours here is an earlier link to a formatted .pdf version > of the above reasoning > http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180514/447885… > VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf > <http://mm.icann.org/pipermail/gnso-igo-ingo-crp/attachments/20180514/447885… > /VeryseriousissueswithTheSwaineMemotheproposedFinalReport-0001.pdf> ] > > > > > On Tue, Apr 24, 2018 at 11:51 PM, Mary Wong <mary.wong(a)icann.org > <mailto:mary.wong@icann.org> > wrote: >> >> Dear Paul and everyone, >> >> Staff is taking the liberty here of addressing your specific question about >> Professor Swaine¹s memo, including your concern that it may have analyzed a >> situation where it is not the IGO that commences proceedings but rather is >> the subject of proceedings against it by a trademark owner. We hope the >> following extracts from the memo will be useful in clarifying the basis on >> which Professor Swaine gave his opinion. >> >> * In his memo, Professor Swaine notes that he ³focuses on the most likely >> scenario: that in which an IGO, possessing rights in a name, abbreviation, >> emblem or the like arising under the Paris Convention has complained and >> prevailed before an administrative panel in Uniform Domain Name Dispute >> Resolution Policy (³Policy² or ³UDRP²) proceedings against a domain-name >> registrantresulting in an order of cancellation or transfer to which the >> losing registrant objects by commencing a judicial action ³ (see Page 77 of >> the Working Group¹s Initial Report, at Annex G). >> >> * He notes that ³how matters unfold from that point [following the >> registrant¹s filing suit] will depend on national law² (Page 81, Annex G) as >> to the question, ³whetherin light of an IGO¹s assent to Mutual >> Jurisdictionits immunity remains. Here, the more likely answer is that it >> would not The grant of Mutual Jurisdiction would likely establish such a >> waiver, as it would for a state entity otherwise entitled to foreign >> sovereign immunity. This waiver would be construed narrowly, but it would >> likely permit proceeding against an IGO in at least some domestic courts. The >> overall answer, then, is contingent. If there were no Mutual Jurisdiction >> clause, an IGO might be entitled to immunity from judicial process; in the >> status quo, however, it likely would not. Equitable considerations might >> influence any judicial analysis² (Page 78, Annex G). >> >> * Concluding that ³In short, the Mutual Jurisdiction clause means that >> participating IGOs will have agreed to the possibility of a judicial process, >> notwithstanding any immunity to which they otherwise would be entitled. This >> will loom largest in cases in which the IGO is the complainant and benefited >> from an initial panel decision in its favor, such that the decision to resort >> to judicial proceedings against the IGOand the risks that creates for >> adverse resultsis made by the private party² (Page 82, Annex G), Professor >> Swaine focuses the remainder of his memo on this scenario. >> >> * As part of his analysis, Professor Swaine also proposed a number of >> alternative policy proposals for the Working Group¹s consideration, including >> possibly amending the Mutual Jurisdiction clause or arbitration. These were >> noted and discussed on several Working Group calls in late 2016, prior to the >> issuance of the Initial Report in January 2017. >> >> While the above summary cannot reflect the entirety or depth of Professor >> Swaine¹s advice, staff thought it might be helpful to recall these points >> given the question raised by Paul. The full memo was attached to the Initial >> Report as Annex G: >> https://gnso.icann.org/sites/default/files/file/field-file-attach/igo-ingo-… >> p-access-initial-19jan17-en.pdf [gnso.icann.org] >> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_sites_de >> fault_files_file_field-2Dfile-2Dattach_igo-2Dingo-2Dcrp-2Daccess-2Dinitial-2D >> 19jan17-2Den.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ6 >> 9mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=EBKiNgHmqL68bsFaEsNNKlLqZO_hrEY4p0 >> DHiAv1NSw&s=Z4RHQ4HEv2BsNDE9-ScaJEfqb2_7E39gOxLYWD1KHnU&e=> . >> >> Thanks and cheers >> Mary & Steve >> >> >> >> From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org >> <mailto:gnso-igo-ingo-crp-bounces@icann.org> > on behalf of Paul Tattersfield >> <gpmgroup(a)gmail.com <mailto:gpmgroup@gmail.com> > >> Date: Tuesday, April 24, 2018 at 10:49 >> To: "Corwin, Philip" <pcorwin(a)verisign.com <mailto:pcorwin@verisign.com> > >> Cc: "haforrestesq(a)gmail.com <mailto:haforrestesq@gmail.com> " >> <haforrestesq(a)gmail.com <mailto:haforrestesq@gmail.com> >, >> "Donna.Austin(a)team.neustar" <Donna.Austin(a)team.neustar>, >> "gnso-igo-ingo-crp(a)icann.org <mailto:gnso-igo-ingo-crp@icann.org> " >> <gnso-igo-ingo-crp(a)icann.org <mailto:gnso-igo-ingo-crp@icann.org> >, >> "rafik.dammak(a)gmail.com <mailto:rafik.dammak@gmail.com> " >> <rafik.dammak(a)gmail.com <mailto:rafik.dammak@gmail.com> > >> Subject: Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: >> IGO-INGO Curative Rights Policy Development Process Working Group) >> >> >> >> Dear Philip, >> >> In your reply to George Kirikos you stated: >> >> ³If it is judicial proceedings them [sic] of course an IGO's initiation of >> process indicates an implicit waiver of judicial immunity.² >> >> Thank you that is helpful. >> >> When I asked last year that the working group consider cases where an IGO >> could be entitled to immunity (i.e. when a TM holder seeks to secure a domain >> name owned by an IGO) I was told by those leading the working group that this >> scenario was not within the working group¹s charter. >> >> Swaine is an analysis of cases where an IGO is entitled to jurisdictional >> immunity in judicial forums. Given you have just stated: >> >> ³If it is judicial proceedings them [sic] of course an IGO's initiation of >> process indicates an implicit waiver of judicial immunity.² >> >> I fail to see how you can ever reconcile Swaine with ever being relevant to >> the working group¹s final report. I don¹t doubt it was expensive and >> interesting but if you want it to remain in the final report please can you >> reply showing how it could be in any way considered relevant? >> >> Yours sincerely, >> >> >> Paul >> >> >> >> On Fri, Apr 20, 2018 at 3:57 PM, Corwin, Philip <pcorwin(a)verisign.com >> <mailto:pcorwin@verisign.com> > wrote: >>> >>> Paul: >>> >>> Responding in an individual capacity -- Professor Swaine¹s memo is an >>> excellent explanation of the accepted scope of IGO judicial immunity and the >>> varied analytical approaches that national courts take in determining the >>> validity of IGO immunity defenses. I remain proud that we solicited this >>> expert input on the central legal issue before the WG, and appreciative that >>> ICANN funded the research. >>> >>> I am sure it will be of substantial assistance to whatever decisional body >>> determines how best to resolve the inherent conflict between statutory >>> rights of domain registrants and the desire of IGOs to have a means of >>> addressing cybersquatting that does not require full surrender of valid >>> claims to judicial immunity as a condition of bringing an action. >>> >>> Philip >>> >>> Philip S. Corwin >>> Policy Counsel >>> VeriSign, Inc. >>> 12061 Bluemont Way[maps.google.com] >>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3 >>> D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail-2 >>> 6source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe >>> -idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv5 >>> 7xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=> >>> Reston, VA 20190 >>> 703-948-4648/Direct >>> 571-342-7489/Cell >>> >>> "Luck is the residue of design" -- Branch Rickey >>> >>> From: Paul Tattersfield [mailto:gpmgroup@gmail.com >>> <mailto:gpmgroup@gmail.com> ] >>> Sent: Thursday, April 19, 2018 7:32 PM >>> To: Corwin, Philip <pcorwin(a)verisign.com <mailto:pcorwin@verisign.com> > >>> Cc: icann(a)leap.com <mailto:icann@leap.com> ; Donna.Austin(a)team.neustar; >>> haforrestesq(a)gmail.com <mailto:haforrestesq@gmail.com> ; >>> gnso-igo-ingo-crp(a)icann.org <mailto:gnso-igo-ingo-crp@icann.org> ; >>> rafik.dammak(a)gmail.com <mailto:rafik.dammak@gmail.com> >>> >>> >>> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary >>> Report (Re: IGO-INGO Curative Rights Policy Development Process Working >>> Group) >>> >>> >>> >>> Dear Philip, >>> OK lets settle this once and for all: >>> Show me examples of where an IGO is entitled to immunity after initiating >>> proceedings. In either the initial proceedings or any follow-on proceedings? >>> >>> >>> >>> Any jurisdiction will do, any matter will do...... >>> >>> If you can not then Swaine is irrelevant to what the working group is >>> considering. >>> >>> >>> >>> Yours sincerely, >>> >>> Paul. >>> >>> >>> >>> >>> >>> On Thu, Apr 19, 2018 at 1:18 PM, Corwin, Philip <pcorwin(a)verisign.com >>> <mailto:pcorwin@verisign.com> > wrote: >>>> >>>> Paul: >>>> >>>> For the record, and in regard to this >>>> The co-chairs will not refute this reasoning but are not prepared to >>>> discuss it - this I find very troubling, not just on this single issue >>>> level but the fact that working group officers can block its discussion for >>>> months and months on end. >>>> >>>> The discussion within the WG was not blocked by the co-chairs. It was >>>> blocked because George filed a section 3.7 Appeal at the point in time when >>>> the co-chairs wished to initiate the consensus call process. The co-chairs >>>> later offered to rescind holding an anonymous poll of the full WG but >>>> George rejected that approach and continued his appeal. So far as I am >>>> aware you supported George in these actions. >>>> >>>> Other than speaking with Susan in their individual capacity as WG members >>>> the co-chairs had no control over the content of her report. >>>> >>>> Speaking only for myself, I do not agree with your characterization of the >>>> Swaine memo and believe it was highly relevant to the central issue before >>>> the WG. >>>> >>>> Philip >>>> >>>> Philip S. Corwin >>>> Policy Counsel >>>> VeriSign, Inc. >>>> 12061 Bluemont Way[maps.google.com] >>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq- >>>> 3D12061-2BBluemont-2BWay-2B-250D-250AReston-2C-2BVA-2B20190-26entry-3Dgmail >>>> -26source-3Dg&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69 >>>> mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAV >>>> Unv57xOoj8&s=CoaOz-PewsfP8inMwD1N5msXqqp7rInZbzZOhQAWtCc&e=> >>>> Reston, VA 20190 >>>> 703-948-4648/Direct >>>> 571-342-7489/Cell >>>> >>>> "Luck is the residue of design" -- Branch Rickey >>>> >>>> From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org >>>> <mailto:gnso-igo-ingo-crp-bounces@icann.org> ] On Behalf Of Paul >>>> Tattersfield >>>> Sent: Thursday, April 19, 2018 5:01 AM >>>> To: George Kirikos <icann(a)leap.com <mailto:icann@leap.com> > >>>> Cc: Donna.Austin(a)team.neustar <mailto:Donna.Austin@team.neustar> ; Heather >>>> Forrest <haforrestesq(a)gmail.com <mailto:haforrestesq@gmail.com> >; >>>> gnso-igo-ingo-crp(a)icann.org <mailto:gnso-igo-ingo-crp@icann.org> ; >>>> rafik.dammak(a)gmail.com <mailto:rafik.dammak@gmail.com> >>>> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary >>>> Report (Re: IGO-INGO Curative Rights Policy Development Process Working >>>> Group) >>>> >>>> >>>> >>>> Dear ICANN, >>>> >>>> >>>> I agree with George, unfortunately I will not be able to attend the call >>>> later today as I have another meeting half way across the country which >>>> clashes with your call. I will listen to the call afterwards and submit any >>>> comments to the email list, sorry for any inconvenience. Please accept my >>>> apologies >>>> >>>> Briefly, I would also like to point out: >>>> >>>> The IGO's have accepted the principle of coexistence and as they are >>>> initiating the proceedings they have no immunity rights whatsoever in >>>> either the initial action or any follow on proceedings. This is an >>>> incredibly simple legal principle and I can not find ANY jurisdiction in >>>> the world on ANY matter not just domain names where an IGO would be >>>> entitled to do so. >>>> >>>> The matter is only confused because the Swaine reasoning looked at the case >>>> where others are initiating an action against the IGOs i.e. a trademark >>>> owner looking to seize an IGO's asset. Clearly the expert report is not >>>> relevant to the case the working group is considering where the IGO's are >>>> initiating proceedings. >>>> >>>> The co-chairs will not refute this reasoning but are not prepared to >>>> discuss it - this I find very troubling, not just on this single issue >>>> level but the fact that working group officers can block its discussion for >>>> months and months on end. I also note with some dismay that only 2 people >>>> in the private office sessions said they were not prepared to accept any >>>> other option than option 3 - the 2 co-chairs preferred option. >>>> >>>> We have an opportunity in this working group to set an example to the RPM >>>> working group using any IGO cases to show how UDRP can be easily improved >>>> for all parties in a way that does not tilt the balance in either side's >>>> favour but just improves process and reduces costs for all parties and >>>> meets the GAC's advice. >>>> >>>> >>>> >>>> It really is incredibly easy - Free private mediation and a separate >>>> (voluntary for registrants) arbitration track. If you want more registrants >>>> to CHOOSE arbitration simply make it cheaper, faster and less risky (name >>>> only) than the judicial route. This could be sorted in a handful of >>>> meetings and no interest group has lost anything! >>>> >>>> >>>> >>>> Yours sincerely, >>>> >>>> Paul. >>>> >>>> >>>> >>>> >>>> >>>> >>>> On Thu, Apr 19, 2018 at 1:38 AM, George Kirikos <icann(a)leap.com >>>> <mailto:icann@leap.com> > wrote: >>>>> Hi folks, >>>>> >>>>> With regards to the Summary Report which is to be discussed tomorrow, >>>>> there are several parts of it that I disagree with, which I'll discuss >>>>> orally tomorrow during our call. However, some parts deserve a written >>>>> response, given that they contain supporting links (and the WebEx >>>>> interface really sucks, compared to Adobe Connect) so it's best to >>>>> post them in advance of the call. >>>>> >>>>> 1. On page 2, it's asserted that "the number of active participants is >>>>> extremely low" (it's also repeated on page 3, i.e. "small number of >>>>> participants' views"). However, that's not consistent with the facts. >>>>> For example, the IRTP-D PDP, the most recently completed GNSO PDP >>>>> according to: >>>>> >>>>> https://gnso.icann.org/en/group-activities/inactive[gnso.icann.org] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_gr >>>>> oup-2Dactivities_inactive&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xc >>>>> l4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trx >>>>> HT_K7CdrHZ4uAVUnv57xOoj8&s=2Pum4Md0vfHMKn5AUBAH3Z-j6dHKCuF_ZhREl6ZbzXU&e=> >>>>> >>>>> has its attendance logs at: >>>>> >>>>> https://community.icann.org/display/ITPIPDWG/Attendance+Log[community.ican >>>>> n.org] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ >>>>> display_ITPIPDWG_Attendance-2BLog&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS >>>>> 6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYe >>>>> LCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=SM46RS2yu2NqlCCV6jC_TqeffNSm5NO7Hrg2Z_z >>>>> xdzw&e=> >>>>> >>>>> If one adds up the "total attended" column, and divide it by the total >>>>> number of meetings, one obtains the average attendance per meeting: >>>>> >>>>> Sum of total attended column = 553 >>>>> Total meetings = 56 >>>>> Average = 9.88 per meeting >>>>> >>>>> It is of note that both the GNSO Council and the ICANN Board adopted >>>>> their recommendations: >>>>> >>>>> https://gnso.icann.org/en/group-activities/active/irtp-d[gnso.icann.org] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_gr >>>>> oup-2Dactivities_active_irtp-2Dd&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6 >>>>> sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeL >>>>> Csl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=j2Zvmixa4aRhzYenT-dnA022yco2l1JnPBILd7c6 >>>>> P2A&e=> >>>>> >>>>> Now, let's compare this to the IGO PDP and its attendance records: >>>>> >>>>> https://community.icann.org/display/gnsoicrpmpdp/Attendance+Records[commun >>>>> ity.icann.org] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ >>>>> display_gnsoicrpmpdp_Attendance-2BRecords&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSV >>>>> zgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE >>>>> _Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=mwySLJqja9rtF5SFHTy4NbNmZuRg0Tz >>>>> TEP7xPbL3BMk&e=> >>>>> >>>>> Sum of total attended column = 711 >>>>> Total meetings = 71 >>>>> Average = 10.01 per meeting >>>>> >>>>> So, there has actually been HIGHER average attendance (10.01 vs 9.88 >>>>> per meeting) in this IGO PDP, compared to the IRTP-D whose work was >>>>> successfully completed. >>>>> >>>>> 2. On page 3, it's claimed that adoption of Option 4 "will require a >>>>> Charter amendment" for that other PDP." I'm not convinced that that's >>>>> a requirement. The RPM PDP charter is at: >>>>> >>>>> https://community.icann.org/display/RARPMRIAGPWG/WG+Charter?preview=3D/587 >>>>> 2= >>>>> 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf[community.icann.org] >>>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ >>>>> display_RARPMRIAGPWG_WG-2BCharter-3Fpreview-3D3D_5872-3D9944_58730036_Char >>>>> ter-2520for-2520RPM-2520PDP-5Ffinal.pdf&d=DwMFaQ&c=FmY1u3PJp6wrcrwll3mSVzg >>>>> fkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2w3xl7xb5cjS_7sB4h6Y&m=fHE_C >>>>> r9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=ps70jf_1KqUAI3uRTbpQJ4U149wbZN0CH >>>>> dG6lKySm40&e=> >>>>> >>>>> and states on page 3 of the charter that: >>>>> >>>>> "(b) Coordination with Other Parallel Efforts >>>>> In the course of its work, the Working Group should monitor the >>>>> progress of and, where appropriate, coordinate with, other ICANN >>>>> groups that are working on topics that may overlap with or >>>>> ***otherwise provide useful input to this PDP.*** >>>>> .... >>>>> In addition, the RPM PDP Working Group should also take into >>>>> consideration the work/outcome of the TMCH Independent Review, the CCT >>>>> Review, and ***any other relevant GNSO policy development***" >>>>> >>>>> (emphasis added) >>>>> >>>>> So, I think this situation was already covered by the RPM PDP's >>>>> current charter, and doesn't need an amendment. >>>>> >>>>> As I mentioned earlier, there are other parts of the Summary Report I >>>>> have concerns about, but I'll save them for tomorrow's call, as they >>>>> don't require any links/quotes. >>>>> >>>>> Sincerely, >>>>> >>>>> George Kirikos >>>>> 416-588-0269 >>>>> http://www.leap.com/[leap.com] >>>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMFa >>>>> Q&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DJ69mAe-idEhpAMF1nu2x6c2 >>>>> w3xl7xb5cjS_7sB4h6Y&m=fHE_Cr9toYeLCsl-trxHT_K7CdrHZ4uAVUnv57xOoj8&s=V1eNh6 >>>>> UuyYEnssdELGy5BGrOMHYiXX7md_UYRrQBKek&e=> >>>>> >>>>> >>>>> >>>>> On Fri, Apr 13, 2018 at 11:36 AM, Mary Wong <mary.wong(a)icann.org >>>>> <mailto:mary.wong@icann.org> > wrote: >>>>>> > Dear all, >>>>>> > >>>>>> > >>>>>> > >>>>>> > On behalf of Susan Kawaguchi, GNSO Council liaison to this PDP Working >>>>>> > Group, please find attached the summary report that Susan mentions in >>>>>> her 10 >>>>>> > April email (below). You should already have received the calendar >>>>>> > invitation and call details for the next Working Group call, currently >>>>>> > scheduled for next Thursday 19 April at our usual time of 1600 UTC. >>>>>> Susan >>>>>> > will be on the call to discuss the report and proposed next steps with >>>>>> > everyone. >>>>>> > >>>>>> > >>>>>> > >>>>>> > Thanks and cheers >>>>>> > >>>>>> > Mary & Steve >>>>>> > >>>>>> > >>>>>> > >>>>>> > From: Susan Kawaguchi <susankpolicy(a)gmail.com >>>>>> <mailto:susankpolicy@gmail.com> > >>>>>> > Date: Tuesday, April 10, 2018 at 12:26 >>>>>> > To: "gnso-igo-ingo-crp(a)icann.org <mailto:gnso-igo-ingo-crp@icann.org> " >>>>>> <gnso-igo-ingo-crp(a)icann.org <mailto:gnso-igo-ingo-crp@icann.org> > >>>>>> > Cc: Heather Forrest <haforrestesq(a)gmail.com >>>>>> <mailto:haforrestesq@gmail.com> >, Mary Wong >>>>>> > <mary.wong(a)icann.org <mailto:mary.wong@icann.org> >, Steve Chan >>>>>> <steve.chan(a)icann.org <mailto:steve.chan@icann.org> > >>>>>> > Subject: [Ext] IGO-INGO Curative Rights Policy Development Process >>>>>> Working >>>>>> > Group >>>>>> > >>>>>> > >>>>>> > >>>>>> > Dear IGO-INGO Curative Rights Policy Development Process Working Group >>>>>> > members, >>>>>> > >>>>>> > >>>>>> > >>>>>> > I write to update you, in my role as GNSO Council Liaison to this >>>>>> Working >>>>>> > Group, on the status of the WG member consultation process that was set >>>>>> out >>>>>> > in my email of 9 March 2018 and then actioned during ICANN61 and >>>>>> following. >>>>>> > >>>>>> > >>>>>> > >>>>>> > As envisaged in my email of 9 March, staff and I are preparing a report >>>>>> for >>>>>> > the Working Group on the input received at and since ICANN61, with >>>>>> > recommendations on next steps from me and Heather Forrest, the GNSO >>>>>> Chair. >>>>>> > We anticipate posting the report to the WG list at the end of this >>>>>> week, for >>>>>> > discussion at a WG meeting to be held at the group's usual time next >>>>>> > Thursday, 19 April. At that meeting, I will be happy to present a >>>>>> summary of >>>>>> > the report and its recommendations, and answer questions from WG >>>>>> members. >>>>>> > >>>>>> > >>>>>> > >>>>>> > An email from staff with call details will be circulated shortly. Bear >>>>>> in >>>>>> > mind that we do not have Adobe Connect, so alternate arrangements will >>>>>> be >>>>>> > made to support our call. >>>>>> > >>>>>> > >>>>>> > >>>>>> > In the meantime, I sincerely thank you for taking the time to provide >>>>>> me >>>>>> > with your feedback, which contributes to the substantial work of the >>>>>> group >>>>>> > on this challenging policy area. >>>>>> > >>>>>> > >>>>>> > >>>>>> > Kind regards, >>>>>> > >>>>>> > >>>>>> > >>>>>> > Susan Kawaguchi >>>>>> > >>>>>> > Councilor for the Business Constituency >>>>>> > >>>>>> > >>>>>> > >>>>>> > >>>>> >>>>>> > _______________________________________________ >>>>>> > 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 <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

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Re: [Gnso-igo-ingo-crp] Question about Professor Swaine's memo
by Mary Wong June 15, 2018

June 15, 2018

Dear Paul and everyone, Staff is taking the liberty here of addressing your specific question about Professor Swaine’s memo, including your concern that it may have analyzed a situation where it is not the IGO that commences proceedings but rather is the subject of proceedings against it by a trademark owner. We hope the following extracts from the memo will be useful in clarifying the basis on which Professor Swaine gave his opinion. * In his memo, Professor Swaine notes that he “focuses on the most likely scenario: that in which an IGO, possessing rights in a name, abbreviation, emblem or the like arising under the Paris Convention … has complained and prevailed before an administrative panel in Uniform Domain Name Dispute Resolution Policy (“Policy” or “UDRP”) proceedings against a domain-name registrant—resulting in an order of cancellation or transfer to which the losing registrant objects by commencing a judicial action … “ (see Page 77 of the Working Group’s Initial Report, at Annex G). * He notes that “how matters unfold from that point [following the registrant’s filing suit] will depend on national law” (Page 81, Annex G) as to the question, “whether—in light of an IGO’s assent to Mutual Jurisdiction—its immunity remains. Here, the more likely answer is that it would not … The grant of Mutual Jurisdiction would likely establish such a waiver, as it would for a state entity otherwise entitled to foreign sovereign immunity. This waiver would be construed narrowly, but it would likely permit proceeding against an IGO in at least some domestic courts. The overall answer, then, is contingent. If there were no Mutual Jurisdiction clause, an IGO might be entitled to immunity from judicial process; in the status quo, however, it likely would not. Equitable considerations might influence any judicial analysis” (Page 78, Annex G). * Concluding that “In short, the Mutual Jurisdiction clause means that participating IGOs will have agreed to the possibility of a judicial process, notwithstanding any immunity to which they otherwise would be entitled. This will loom largest in cases in which the IGO is the complainant and benefited from an initial panel decision in its favor, such that the decision to resort to judicial proceedings against the IGO—and the risks that creates for adverse results—is made by the private party” (Page 82, Annex G), Professor Swaine focuses the remainder of his memo on this scenario. * As part of his analysis, Professor Swaine also proposed a number of alternative policy proposals for the Working Group’s consideration, including possibly amending the Mutual Jurisdiction clause or arbitration. These were noted and discussed on several Working Group calls in late 2016, prior to the issuance of the Initial Report in January 2017. While the above summary cannot reflect the entirety or depth of Professor Swaine’s advice, staff thought it might be helpful to recall these points given the question raised by Paul. The full memo was attached to the Initial Report as Annex G: https://gnso.icann.org/sites/default/files/file/field-file-attach/igo-ingo-…. Thanks and cheers Mary & Steve From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces(a)icann.org> on behalf of Paul Tattersfield <gpmgroup(a)gmail.com> Date: Tuesday, April 24, 2018 at 10:49 To: "Corwin, Philip" <pcorwin(a)verisign.com> Cc: "haforrestesq(a)gmail.com" <haforrestesq(a)gmail.com>, "Donna.Austin(a)team.neustar" <Donna.Austin(a)team.neustar>, "gnso-igo-ingo-crp(a)icann.org" <gnso-igo-ingo-crp(a)icann.org>, "rafik.dammak(a)gmail.com" <rafik.dammak(a)gmail.com> Subject: Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group) Dear Philip, In your reply to George Kirikos you stated: “If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.” Thank you that is helpful. When I asked last year that the working group consider cases where an IGO could be entitled to immunity (i.e. when a TM holder seeks to secure a domain name owned by an IGO) I was told by those leading the working group that this scenario was not within the working group’s charter. Swaine is an analysis of cases where an IGO is entitled to jurisdictional immunity in judicial forums. Given you have just stated: “If it is judicial proceedings them [sic] of course an IGO's initiation of process indicates an implicit waiver of judicial immunity.” I fail to see how you can ever reconcile Swaine with ever being relevant to the working group’s final report. I don’t doubt it was expensive and interesting but if you want it to remain in the final report please can you reply showing how it could be in any way considered relevant? Yours sincerely, Paul On Fri, Apr 20, 2018 at 3:57 PM, Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>> wrote: Paul: Responding in an individual capacity -- Professor Swaine’s memo is an excellent explanation of the accepted scope of IGO judicial immunity and the varied analytical approaches that national courts take in determining the validity of IGO immunity defenses. I remain proud that we solicited this expert input on the central legal issue before the WG, and appreciative that ICANN funded the research. I am sure it will be of substantial assistance to whatever decisional body determines how best to resolve the inherent conflict between statutory rights of domain registrants and the desire of IGOs to have a means of addressing cybersquatting that does not require full surrender of valid claims to judicial immunity as a condition of bringing an action. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3…> Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Paul Tattersfield [mailto:gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>] Sent: Thursday, April 19, 2018 7:32 PM To: Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>> Cc: icann(a)leap.com<mailto:icann@leap.com>; Donna.Austin(a)team.neustar; haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>; gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org>; rafik.dammak(a)gmail.com<mailto:rafik.dammak@gmail.com> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group) Dear Philip, OK lets settle this once and for all: Show me examples of where an IGO is entitled to immunity after initiating proceedings. In either the initial proceedings or any follow-on proceedings? Any jurisdiction will do, any matter will do...... If you can not then Swaine is irrelevant to what the working group is considering. Yours sincerely, Paul. On Thu, Apr 19, 2018 at 1:18 PM, Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>> wrote: Paul: For the record, and in regard to this – The co-chairs will not refute this reasoning but are not prepared to discuss it - this I find very troubling, not just on this single issue level but the fact that working group officers can block its discussion for months and months on end. The discussion within the WG was not blocked by the co-chairs. It was blocked because George filed a section 3.7 Appeal at the point in time when the co-chairs wished to initiate the consensus call process. The co-chairs later offered to rescind holding an anonymous poll of the full WG but George rejected that approach and continued his appeal. So far as I am aware you supported George in these actions. Other than speaking with Susan in their individual capacity as WG members the co-chairs had no control over the content of her report. Speaking only for myself, I do not agree with your characterization of the Swaine memo and believe it was highly relevant to the central issue before the WG. Philip Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way[maps.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__maps.google.com_-3Fq-3…> Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org<mailto:gnso-igo-ingo-crp-bounces@icann.org>] On Behalf Of Paul Tattersfield Sent: Thursday, April 19, 2018 5:01 AM To: George Kirikos <icann(a)leap.com<mailto:icann@leap.com>> Cc: Donna.Austin(a)team.neustar<mailto:Donna.Austin@team.neustar>; Heather Forrest <haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>>; gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org>; rafik.dammak(a)gmail.com<mailto:rafik.dammak@gmail.com> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group) Dear ICANN, I agree with George, unfortunately I will not be able to attend the call later today as I have another meeting half way across the country which clashes with your call. I will listen to the call afterwards and submit any comments to the email list, sorry for any inconvenience. Please accept my apologies Briefly, I would also like to point out: The IGO's have accepted the principle of coexistence and as they are initiating the proceedings they have no immunity rights whatsoever in either the initial action or any follow on proceedings. This is an incredibly simple legal principle and I can not find ANY jurisdiction in the world on ANY matter not just domain names where an IGO would be entitled to do so. The matter is only confused because the Swaine reasoning looked at the case where others are initiating an action against the IGOs i.e. a trademark owner looking to seize an IGO's asset. Clearly the expert report is not relevant to the case the working group is considering where the IGO's are initiating proceedings. The co-chairs will not refute this reasoning but are not prepared to discuss it - this I find very troubling, not just on this single issue level but the fact that working group officers can block its discussion for months and months on end. I also note with some dismay that only 2 people in the private office sessions said they were not prepared to accept any other option than option 3 - the 2 co-chairs preferred option. We have an opportunity in this working group to set an example to the RPM working group using any IGO cases to show how UDRP can be easily improved for all parties in a way that does not tilt the balance in either side's favour but just improves process and reduces costs for all parties and meets the GAC's advice. It really is incredibly easy - Free private mediation and a separate (voluntary for registrants) arbitration track. If you want more registrants to CHOOSE arbitration simply make it cheaper, faster and less risky (name only) than the judicial route. This could be sorted in a handful of meetings and no interest group has lost anything! Yours sincerely, Paul. On Thu, Apr 19, 2018 at 1:38 AM, George Kirikos <icann(a)leap.com<mailto:icann@leap.com>> wrote: Hi folks, With regards to the Summary Report which is to be discussed tomorrow, there are several parts of it that I disagree with, which I'll discuss orally tomorrow during our call. However, some parts deserve a written response, given that they contain supporting links (and the WebEx interface really sucks, compared to Adobe Connect) so it's best to post them in advance of the call. 1. On page 2, it's asserted that "the number of active participants is extremely low" (it's also repeated on page 3, i.e. "small number of participants' views"). However, that's not consistent with the facts. For example, the IRTP-D PDP, the most recently completed GNSO PDP according to: https://gnso.icann.org/en/group-activities/inactive[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…> has its attendance logs at: https://community.icann.org/display/ITPIPDWG/Attendance+Log[community.icann…<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di…> If one adds up the "total attended" column, and divide it by the total number of meetings, one obtains the average attendance per meeting: Sum of total attended column = 553 Total meetings = 56 Average = 9.88 per meeting It is of note that both the GNSO Council and the ICANN Board adopted their recommendations: https://gnso.icann.org/en/group-activities/active/irtp-d[gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…> Now, let's compare this to the IGO PDP and its attendance records: https://community.icann.org/display/gnsoicrpmpdp/Attendance+Records[communi…<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di…> Sum of total attended column = 711 Total meetings = 71 Average = 10.01 per meeting So, there has actually been HIGHER average attendance (10.01 vs 9.88 per meeting) in this IGO PDP, compared to the IRTP-D whose work was successfully completed. 2. On page 3, it's claimed that adoption of Option 4 "will require a Charter amendment" for that other PDP." I'm not convinced that that's a requirement. The RPM PDP charter is at: https://community.icann.org/display/RARPMRIAGPWG/WG+Charter?preview=3D/5872= 9944/58730036/Charter%20for%20RPM%20PDP_final.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_di…> and states on page 3 of the charter that: "(b) Coordination with Other Parallel Efforts In the course of its work, the Working Group should monitor the progress of and, where appropriate, coordinate with, other ICANN groups that are working on topics that may overlap with or ***otherwise provide useful input to this PDP.*** .... In addition, the RPM PDP Working Group should also take into consideration the work/outcome of the TMCH Independent Review, the CCT Review, and ***any other relevant GNSO policy development***" (emphasis added) So, I think this situation was already covered by the RPM PDP's current charter, and doesn't need an amendment. As I mentioned earlier, there are other parts of the Summary Report I have concerns about, but I'll save them for tomorrow's call, as they don't require any links/quotes. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/[leap.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwMFaQ&…> On Fri, Apr 13, 2018 at 11:36 AM, Mary Wong <mary.wong(a)icann.org<mailto:mary.wong@icann.org>> wrote: > Dear all, > > > > On behalf of Susan Kawaguchi, GNSO Council liaison to this PDP Working > Group, please find attached the summary report that Susan mentions in her 10 > April email (below). You should already have received the calendar > invitation and call details for the next Working Group call, currently > scheduled for next Thursday 19 April at our usual time of 1600 UTC. Susan > will be on the call to discuss the report and proposed next steps with > everyone. > > > > Thanks and cheers > > Mary & Steve > > > > From: Susan Kawaguchi <susankpolicy(a)gmail.com<mailto:susankpolicy@gmail.com>> > Date: Tuesday, April 10, 2018 at 12:26 > To: "gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org>" <gnso-igo-ingo-crp(a)icann.org<mailto:gnso-igo-ingo-crp@icann.org>> > Cc: Heather Forrest <haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>>, Mary Wong > <mary.wong(a)icann.org<mailto:mary.wong@icann.org>>, Steve Chan <steve.chan(a)icann.org<mailto:steve.chan@icann.org>> > Subject: [Ext] IGO-INGO Curative Rights Policy Development Process Working > Group > > > > Dear IGO-INGO Curative Rights Policy Development Process Working Group > members, > > > > I write to update you, in my role as GNSO Council Liaison to this Working > Group, on the status of the WG member consultation process that was set out > in my email of 9 March 2018 and then actioned during ICANN61 and following. > > > > As envisaged in my email of 9 March, staff and I are preparing a report for > the Working Group on the input received at and since ICANN61, with > recommendations on next steps from me and Heather Forrest, the GNSO Chair. > We anticipate posting the report to the WG list at the end of this week, for > discussion at a WG meeting to be held at the group's usual time next > Thursday, 19 April. At that meeting, I will be happy to present a summary of > the report and its recommendations, and answer questions from WG members. > > > > An email from staff with call details will be circulated shortly. Bear in > mind that we do not have Adobe Connect, so alternate arrangements will be > made to support our call. > > > > In the meantime, I sincerely thank you for taking the time to provide me > with your feedback, which contributes to the substantial work of the group > on this challenging policy area. > > > > Kind regards, > > > > Susan Kawaguchi > > Councilor for the Business Constituency > > > > > _______________________________________________ > 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 _______________________________________________ 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

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