Peter, I do wish to point out that the UDRP was not intended to create rights that did not exist prior to the UDRP. This is in the founding WIPO report that was adopted by ICANN with a great deal of grandeur. The 1999 Report also stated as a foundational position that respondents were to retain their day in court. NGOs existed prior to the UDRP. Prior to the UDRP the only means by which they could enforce rights as against a domain name registrant was to commence litigation (either directly or indirectly via a stalking horse/assignee, etc). Pre-UDRP there was no basis for forcing the respondent into any form of arbitration. The UDRP was thoughtfully created to grant the right to litigate de novo. The Policy references such litigation in several places and the consent to Mutual Jurisdiction is expressly limited to the dispute concerning the domain name. From this several sound legal principles have arisen. 1. Policy 4(k) does not itself create an independent right of action. A losing respondent must still find a statutory basis upon which to rest its claim. This has been recognized in virtually all post-UDRP cases including those in the UK (note the Yoyo decision among others). 2. The Mutual Jurisdiction certification does not extend beyond the reversal of the UDRP decision. The certification does not itself grant personal jurisdiction over the Complainant (now defendant) for any other form of claim. This precludes the awarding of monetary damages other than costs unless there is an independent claim to base it upon or the court has personal jurisdiction over the Complainant/defendant independently of the MJ certification. By creating an independent arbitration process for NGOs you are (a) contradicting not one but at least two of founding principles of the UDRP. With all respect, I have yet to see any argument in favor of the positions currently being promoted by the Chairs other than (a) the Board/GAC/IGOs want it that way. And, now that George has surfaced an actual study comparing tech costs of arbitration to traditional litigation, there seems absolutely no credible reason to continue to support the private arbitration suggestions. I invite ANYONE to provide evidence to the contrary. And by evidence I mean that not assumptions or beliefs but facts. Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Petter Rindforth <petter.rindforth@fenixlegal.eu> Reply-To: <petter.rindforth@fenixlegal.eu> Date: Saturday, November 18, 2017 at 12:22 AM To: George Kirikos <icann@leap.com> Cc: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Consolidated results of informal poll constituting preliminary consensus call on Options A-C
Dear George,
I think you have made it continuously clear that you are in favour of Option A. And, as a WG member, you are of course free to explain why you voted for Option A.
However, the fact is that we not just only have a clear majority support for Option C (9 supports and 2 that can live with it), compared to Option A (5 supports and 1 that can live with it), it is also clear that there is a majority against Option A (8 does not support), compared to Option C (3 does not support).
This is not just Philip¹s and mine arguments, it is the pure fact.
I can fully understand that, as in all voting cases, it may sometimes be hard to understand why a majority has other thoughts about a specific topic.
And all WG members had (and have) their freedom to further explain and argue their support for a specific solution/option. As you say George, sometimes a support for one specified option needs more detailed explanation, where other options may be more clear, "fair and balanced".
As to Option 6: As you may recall, you have made the presentation during our WG meetings, and we (the full WG) have discussed it. As you also may recall, the conclusion within our WG meetings was that not all courts would accept that, independently of what the parties have agreed upon. During last call, we invited you to - during the upcoming week provide us (the WG) with your suggestion on your proposed specific solution to be added to the current description of the arbitration option for consideration by the WG.
I therefore look forward your specific wording / suggestion on that topic.
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
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17 november 2017 20:16:33 +01:00, skrev George Kirikos <icann@leap.com>:
I think the comments within this survey are quite telling. Those who are in favour of option A (and opposing option C) have very strong and fully considered views, which they can explain and support with facts and reasoning. Compare that to those expressing support for C (and opposing A/B). They make statements like:
"Fair and balanced" (supporting C) "DOA at Council" (opposing A)
bereft of credible reasoning.
This demonstrates that it's fear-mongering by the co-chairs and political motivations that led some to switch from Option 1 (now Option A) to Option C (formerly Option 2), rather than anything based on new facts or new analysis. Given this, it explains the refusal by the co-chairs to attach names to those who are supporting Option C -- there's no expectation of privacy here --- everyone must vote publicly when it comes down to a final consensus call, and should have been able to publicly explain why they supported Option C in this preliminary survey.
In the book "Principles" by Ray Dalio that I'm reading, he writes about how decisions at Bridgewater go through what's called "believability-weighted decision making", see some discussion of that at:
http://www.businessinsider.com/bridgewater-ray-dalio-legacy-2017-9
I think that is a wise approach, whereby votes that are backed by sound logic, facts, experience, and reasoning should be weighted much higher than votes that lack those attributes and which are instead fear-driven and thus are not believable.
It's been said that "One man with courage makes a majority." Hopefully it does not have to come to that.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Fri, Nov 17, 2017 at 1:50 PM, Mary Wong <mary.wong@icann.org> wrote:
Dear all,
As noted on the Working Group call yesterday, please find attached the consolidated results of the informal poll that was conducted regarding Working Group member preferences as among Options A, B and C.
Individual Working Group members especially those who provided specific comments as part of their poll response are invited to add any relevant background and further thoughts to this email.
Thanks and cheers
Mary
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