Hello, On Tue, Jun 27, 2017 at 9:38 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
It has been the unanimous view of all attorneys we have consulted ...
A similar statement was made during today's telephone call. This PDP, and ICANN processes in general, mandate maximum transparency. Citing unnamed attorneys who are not "on the record" within the working group, and who've not been formally engaged, who may not be independent, nor had their work (or questions/scenarios) reviewed by the working group does not meet the transparency requirements of our PDP. If I did the same, I'd be criticized, and rightly so, as it would be improper. Why should anyone defer to one's "unnamed supporters" or "unnamed experts" who are not part of this PDP, and ignore the interests of domain name registrants who are far closer to "unanimous" in wanting to preserve their rights to court action, to the maximum extent, and not have the UDRP tamper with those rights? The price of using the UDRP, as has been stated before, is that one consents to the the supremacy of the courts, if either party wishes to take it there. If one wants an Option #5, eliminate the UDRP, and force everyone to use the court system. If you want to reinvent the UDRP, you'd go back to what was intended for today -- price of using the "new UDRP" is that the court system remains supreme. Let me give a scenario that some might have not contemplated: IGO has court case set aside due to immunity, according to a judge, and the domain name transfers to the IGO (i.e. UDRP is followed). However, now the IGO is subject to the *registration agreement* of that registrar, and the former registrant (loser of the UDRP) then *immediately* files a court case following the court case. For Tucows/OpenSRS, the registration agreement states: http://www.loffs.com/Domains/Legal/master.html "11. .... If Registrant or Registrant's domain name becomes the subject of litigation, Tucows may deposit control of Registrant's domain name record into the registry of the judicial body by supplying a party with a registrar certificate." "29. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN ONTARIO AND YOU IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURTS." "Irrevocably consent to the jurisdiction" seems like a further and valid waiver of immunity, to me, perhaps *even stronger* than the mutual jurisdiction clause of the UDRP. Anyhow, I look forward to the further productive discussions to try to achieve a full consensus. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/