Dear WG Members,

Below, please find an email sent on behalf and at the request of the WG co-chairs.

On the 14 September WG call, in further discussing the options related to Recommendation 4, we reviewed an updated diagram (attached) and considered the two specific questions below. On the call, the WG reached provisional agreement as follows.

1. Should limitation of the court review or arbitration to disposition of the domain name require mutual agreement of the Respondent and IGO, or should we recommend that limitation for one or both appeal forums?  
• If this WG were to recommend that court review be limited to ownership of the domain name, it appears unlikely that ICANN policy would prevent a court of mutual jurisdiction from exploring all remedies that it has access to. However, parties could be encouraged or at least be made aware that judicial appeals could be limited to ownership of the domain name. We anticipate that the Respondent, by forgoing its ability to seek monetary damages or injunctive relief, could reasonably expect that the IGO (complainant) would forgo its ability to assert a defense of judicial immunity.
• Arbitration could be limited to the disposition of the domain name in recognition that this option, coming after an IGO’s successful assertion of an immunity defense, provides an avenue of additional appeal that is unavailable to Respondents at present; as well as that an arbitration body has little or no power to enforce a money judgment or injunction against an IGO.
2. Should the Respondent be permitted to choose to go directly to arbitration rather than judicial appeal if it wishes to?
• The WG agreed that respondents should be allowed to file an arbitration action after the UDRP/URS is concluded in the IGO’s favor if it wishes to avoid the costs and lengths of a judicial appeal. However, the WG also discussed and is now posing the following questions: In addition to the previous allowance, should respondents also be permitted to file an arbitration action before or during the pendency (pre-decision) of a UDRP? Should such pre-decision filing require mutual agreement of the IGO complainant?

The co-chairs encourage all WG members, especially those who do not participate on the WG calls on a regular basis, to provide their feedback and response to the specific questions above. We hope and anticipate completing the Final Report prior to ICANN60 and therefore, your feedback is critical in shaping this WG’s final recommendations.

Best,

Steve

Steven Chan


Policy Director, GNSO Support

ICANN

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