Hello, On Wed, Nov 22, 2017 at 4:27 PM, Paul Keating <Paul@law.es> wrote:
When we were engaging in" what ifs” I stated my support for a rule change regarding vitiating the underlying UDRP ruling IF an IGO obtained dismissal of post-udrp litigation based on Sov. Imm. In other words, if the IGOs thought they had immunity, let them argue for it – with the appropriate consequences.
Yes, for those who didn't attend all the meetings, Paul Keating is correct. What is "Option 1" (or now Option A) was actually his proposal (not mine). The earliest reference I could find was on page 14 of the July 21, 2016 phone call transcript: https://community.icann.org/download/attachments/60491579/transcript%20IGO%2... Paul Keating: "But to state emphatically in a part of the UDRP policy that if there is subsequent litigation following a UDRP, in which the IGO requests and is granted or the court on its own grants immunity, then the UDRP decision itself should become a nullity. And the reason is, is because otherwise you're leaving a respondent with no ability to challenge a contractually appointed panel. The quality of which is not always very good. I mean, if you look at the statistics for post-UDRP litigation, the vast majority of them are overturned. And I think that to leave a respondent solely with the UDRP as their only means of addressing the issue and nothing else, I think that that’s patently unfair to the respondent. So I think that the proper choice is to place the decision at the level of the IGO. If they wish to proceed with the UDRP they're running the risk of waiver of their immunity claim. If they win and they subsequently argue immunity, and are granted immunity, then the UDRP decision becomes a nullity." Phil Corwin (now on page 15): "Yes, thanks for that input, Paul. Let me just ask - and I think what you put forward should be discussed by the group as we move toward report and recommendations. If that - let’ say there’s a decision, it goes against the registrant in the UDRP. Transfer is ordered. Registrant files in a court of mutual jurisdiction. IGO goes into that court and says they - we shouldn’t be here, we’re immune. Court agrees with them, would the IGO then - then the - under your scenario, the UDRP decision is also vitiated." So, initially it was being called "nullification", and I think Phil might have been the first one to use the term vitiate (which some people don't like as it's too technical). Regardless, it was Paul Keating's idea. This is consisent with the Adobe Connect Chat Room Transcript for the following week's call (July 28, 2016): http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2016-July/000552.html where we're chatting back and forth and we're using the term "nullification", I pointed out expressly that it was Paul Keating's idea: "George Kirikos:For suggestion #1 (which I don't favour; I'm in the "status quo + greater education + assignment camp), nullification should take place regardless when the court case is brough (since a court case can be brought at any time, even before the UDRP decision is rendered). George Kirikos:*brough = brought Mary Wong:Options A through D are more fully detailed in Prof Swaine's legal memo. Mary Wong:Option E brings us back to the standing issue - Phil provided a clarification last week that this, too, is an option to consider. Mary Wong:@George, but this would be a case filed by the losing respondent, right? Mary Wong:Against a UDRP decision in favor of the IGO. George Kirikos:Mary: it would be filed during the UDRP, before the panel has deemed the respondent a "loser" George Kirikos:A court case can be initiated at any time, even before the panel has made a decision. Mary Wong:Understood, but I had thought that the "nullification" point referred to vitiating the UDRP decision. George Kirikos:(that's how my company did it for the PUPA.com domain name dispute; Tucows has done the same several times, as have others) Mary Wong:Because, if there hasn't yet been a panel decision, there would not be a result to nullify. George Kirikos:Right, it would be nullified, even if the respondent didn't wait for the panel to reach a decision (i.e. they might make an adverse decision later, after the court case is brought). George Kirikos:Some panels will terminate, to defer to the courts. Some panels will still render a decision, though. George Kirikos:I didn't propose it -- Paul Keating did." Sincerely, George Kirikos 416-588-0269 http://www.leap.com/