Zak, While I agree that changes to the UDRP should be handled by the RPM WG, I do not believe our recommendation should be limited to simply kicking the can down the road. I believe that our initial report and recommendation (that no change is required) remains valid and should be reflected in the published report of this WG. I would also suggest that our report conclude with a statement that even if a change were advisable or appropriate, such would necessarily require modifications to the UDRP and its accompanying rules. As such changes are within the ambit of the RPM WG, we feel it inappropriate to inject our proposals in that regard, Your proposal could then form a part of that concluding comment. What I DO NOT agree with, however, is limiting our report to simply forwarding the issue to the RPM WG. IF the RPM WG takes up this issue it should be with the full benefit of the report of this WG. Regards, Paul Keating From: Gnso-igo-ingo-crp <gnso-igo-ingo-crp-bounces@icann.org> on behalf of Zak Muscovitch <zak@muscovitch.com> Date: Monday, December 11, 2017 at 8:54 PM To: Mary Wong <mary.wong@icann.org>, <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Action items from Working Group call this past Thursday
Dear all,
Further to Mary¹s below email and further to the Working Group Call of December 7, 2017, wherein Phil asked for proposed wording for consideration and discussion, in connection with my suggestion that the Working Group recommend that the options for how to deal with IGO concerns be addressed through the RPM WG, please see below:
³The IGO WG has extensively deliberated on the question of whether changes are required in order to address IGO concerns and has successfully developed several potential options for addressing this issue. These potential options however, would necessarily involve revisions to the UDRP itself. The IGO WG is mindful that any such substantive changes to the UDRP itself should be evaluated within the context of how they affect all stakeholders and how they would affect the delicate balance which the UDRP has achieved between competing interests. Accordingly, the IGO WG strongly recommends that any changes to how the UDRP procedure is drafted and employed for IGO's, if any, should be referred to the RPM WG for consideration within its broader mandate to review the UDRP.²
As you know, the IGO WG commenced its work over three years ago. The complexity of the issues, and the delay created by the preparation and review of the Swaine memo, resulted in the work of this WG being prolonged beyond the expectations of any of its members. In the meantime, the RPM WG has begun its work and will shortly begin its review of the UDRP. We find ourselves contemplating recommending changes to the UDRP, just when the RPM WG is on the verge of considering similar issues in a broader more comprehensive context.
The IGO WG¹s careful review of the issues raised by the IGOs' request for modifications has revealed that any proposed solutions to the discrete problem raised by the IGOs implicates core principles at the heart of the UDRP that affect the balance of rights for participants and the grand bargain among the stakeholders that led the UDRP to take its current form. In particular, the IGO's assertion of sovereign immunity to judicial review undermines the fundamental principle that access to the UDRP was a simpler alternative to judicial consideration but should never prevent access to the courts for a final determination of the issues. In addition, the creation of a new complex arbitration procedure is being touted for its benefits in addressing a potential lack of a cause of action for de novo judicial review in the Mutual Jurisdiction. Rather than promote a complex solution to a fundamental issue of access to judicial review that is limited to a fringe circumstance, the desirability of ensuring that the UDRP provides access to a Mutual Jurisdiction empowered to de novo review of UDRP decisions calls out for a comprehensive solution that can best be provided through the work of the RPM WG.
Option A, while adhering most closely to the legal principles underpinning the UDRP has been characterized as politically unpalatable, and indeed "dead on arrival' at the GNSO council. Option C, as mentioned above, attempts to bandage over a fundamental concern with judicial access with a complex apparatus that will need countless hours to develop despite the expectation that it may rarely if ever be used. Neither option has attracted a strong consensus from the Working Group members. I suggest that is because both options both have defects that can better be addressed by the work of the RPM WG.
Instead, in my view, the above suggested alternative approach is attractive for three reasons.
First, while it may be within the mandate of the IGO WG to recommend changes for addressing IGO concerns, it is ill advised to make any such specific recommendations outside of the context of the far broader mandate of the RPM WG. The UDRP has been largely successful since 1999 because it created a finely balanced dispute resolution regime. All proposed changes which the IGO WG has considered, involve tinkering with the UDRP, and any such tinkering risks throwing off the balance which it has achieved to date. For example, under Option C¹, the provisions of Paragraph 4(k) of the UDRP would have to be re-drafted so as to enable an IGO to use the UDRP without necessarily agreeing to the jurisdiction of courts in a subsequent action commenced by a registrant challenging a UDRP decision. Likewise, Option A¹ also necessarily requires a substantial revision to the UDRP, as under that proposal, Paragraph 4(k) would also have to be re-drafted, to provide for the staying of a UDRP decision in the event that an IGO successfully asserted sovereign immunity in a subsequent court action challenging a UDRP transfer decision.
Paragraph 4(k) is arguably one of the most fundamental and important provisions in the UDRP and was ostensibly included to ensure that registrants did not lose the right which they enjoyed to commence court proceedings prior to the establishment of the UDRP. It is therefore inappropriate to be recommending substantive changes to this crucial provision of the UDRP merely to address a discrete concern of IGO¹s, without taking into account how such changes may affect the underlying and fundamental balance which the UDRP has achieved. Such considerations, if not beyond the remit of the IGO WG, are certainly within the remit of the RPM WG, which is better equipped to have that discussion given its mandate and participants.
The apparent split between the Option A¹ camp and the Option C¹ camp is a good indication that this issue is so controversial that it cannot be reasonably determined within the limited context of IGO¹s only, but rather is best dealt with through UDRP review in the RPM WG. If there were a solution available to the IGO WG that enabled a solution without opening up the UDRP in such fundamental ways, then it likely would have engendered wider support than we are seeing now.
Second, it may come as somewhat of a surprise to some members of the RPM WG that changes are being recommended to the UDRP by the IGO WG, as many may have reasonably understood that it was only the RPM WG which had a mandate to review the UDRP and recommend substantial changes to fundamental provisions with far reaching implications. It may even be somewhat embarrassing to be recommending such substantial changes when it is apparent that not all interests are represented in the IGO WG, including but not limited to the noticeable absence of IGO¹s themselves.
Third, this IGO WG has conducted itself admirably and thoughtfully over a long period of time and has reached consensus on most issues. It would be a shame to allow this success to be diminished by such pronounced divisions on this last remaining issue, with two primary camps maintaining their positions in favor of Option A and Option C, respectively. It would be far better to be able to include in the final report, very strong consensus amongst all IGO WG members on all issues. Otherwise, it appears that support between the two primary options is split, without a firm mandate to recommend either proposal, and this outcome would detract from the WG¹s accomplishments unnecessarily. Furthermore, it is of little utility to be recommending any particular option with such a weak level of consensus. It is far preferable to be in a position to make recommendations that enjoy strong consensus, and in the absence of that, it is more appropriate to refer this controversial issue to the RPM WG where it can be considered within the context of a review of the UDRP including the balance which it has enjoyed to date.
Yours truly,
Zak
Zak Muscovitch Muscovitch Law P.C. 446 Eglinton Avenue West Toronto, Ontario, Canada M5N 1A5
TEL: 416-924-5084 FAX: 416-920-6306 TOLL-FREE: 1-866-654-7129 Http://www.Muscovitch.com <http://www.muscovitch.com/> Http://www.DNattorney.com <http://www.dnattorney.com/>
From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Mary Wong Sent: December-11-17 12:13 AM To: gnso-igo-ingo-crp@icann.org Subject: [Gnso-igo-ingo-crp] Action items from Working Group call this past Thursday
Dear all,
The following were captured as Action Items by staff from the last Working Group call, held on Thursday 7 December:
* Working Group members who support the suggestion that a general recommendation be made, to refer the question of balancing the rights of IGO complainants with those of registrants (vis-à-vis the scenario where a losing respondent in a UDRP files proceedings in a national court and the IGO complainant succeeds in pleading jurisdictional immunity and including a possible refinement/modification of Paragraph 4(k) of the UDRP), to the RPM Review Working Group are to develop a specific proposal for full Working Group discussion at the meeting this coming Thursday (14 December); and
* George Kirikos to circulate updated specific language, if possible, in relation to Option 6 for Working Group consideration.
Thanks and cheers Mary
From: Mary Wong <mary.wong@icann.org> Date: Wednesday, December 6, 2017 at 18:08 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: Topics for discussion on Working Group call today
Dear all,
As a reminder, please note that for the Working Group call that is coming up in a few hours, the co-chairs plan to focus on discussing a possible Recommendation 3 and finalizing a possible approach to the various Options that have been under discussion.
To that end, staff is re-circulating the pre-ICANN60 preliminary poll results so that members may review the specific language for Options A-C. In addition, there were also follow-up discussions on this mailing list in respect of resubmission by George Kirikos of what was called ³Option 6² you can find these email threads here: * http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-November/000944.html and * http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-December/000957.html
Staff has in the meantime updated the draft excerpts document that was discussed on the call last week, concerning language for Recommendations 1, 2 and 4. We will circulate the update separately for members to ensure that our updates accurately capture what was discussed and agreed.
Thanks and cheers Mary
Thanks and cheers Mary _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp