Hi Mary, On Thu, Jul 20, 2017 at 12:03 PM, Mary Wong <mary.wong@icann.org> wrote:
Just to clarify that the staff concern is not about the UDRP or the language therein; rather, it stems from the assumption in Option 1 that a legally enforceable panel decision can be set aside by decree/decision/policy amendment of ICANN. It’s actually a separate point from what ICANN can bind Contracted Parties to do via contract and the “picket fence” of ICANN Consensus Policy. In other words, even if the UDRP as a Consensus Policy were modified along the lines of Option 1, yes that would be binding on all Contracted Parties, but it would in our view nevertheless still be something that may be legally questionable.
You use the term "a legally enforceable panel decision". That "panel" isn't a court itself. If an IGO thinks they can "enforce it", where would they go? They'd need to go to a court (giving up immunity), to try to get that enforced against the registrar/registrant, or have ICANN do so. i.e. in other words, it's not something created by independent law -- it's just a procedure ICANN created. ICANN could create a procedure whereby domain disputes are decided by flipping a coin. That procedure isn't a creation of some independent law outside of ICANN that compels the registrar/registrants -- it's only enforceable via the ICANN created contracts with registrars, registrants, etc. A modification of that procedure (to void it under certain circumstances), also by ICANN is certainly equally as enforceable as the original was enforceable.
Nothing in the UDRP takes away a person’s legal rights – however, declaring that a panel decision is voided when there has not been either an arbitral appeal or court hearing to determine the merits of that decision may.
The inferior UDRP panel decision (not at the level of due process of a real court) is being voided specially *because* it hasn't been vetted, subjected to the full scrutiny and due process of a real national court. i.e. the rights to due process are so important, that in the absence of that full legal procedure, the inferior panel decision is disregarded (that's also why any actual legal case is "de novo", ignoring the outcome of the 'adjudication-lite' UDRP panel). Furthermore, the IGO would have violated its undertaking, the price it paid to access the UDRP, to get to that position, which is another reason to void the decision. One metaphor (albeit, in a somewhat reverse situation) is when a will specifies that an heir who legally challenges that will in court gets nothing (a "no-contest clause"). Option #1 is slightly different (and less controversial than a no-contest clause), in that it's saying that someone who **opposes** such an attempt at judicial appeal, especially as they originally agreed to allow that appeal to heard in the courts, gets absolutely nothing. (i.e. voided UDRP decision, nullfied, etc.). That's not an unreasonable outcome. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/