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