Food For Thought -- Option #7 (?) -- model UDRP/URS after British Columbia's Civil Resolution Tribunal
Hi folks, Probably too late to come up with new options in this PDP at this late stage, but here's some food for thought for how the IGO "quirk of process" issue as well as the Yoyo.email "cause of action" issue in the UK can be completely solved, with various changes to the UDRP/URS process. In particular, I very recently stumbled upon the "Civil Resolution Tribunal", which is Canada's first online tribunal that handles various small claims and strata (condominium) disputes in British Columbia: https://civilresolutionbc.ca/ In particular, there's one important part of their rules which (if emulated) would completely solve the issues we're having, see: https://civilresolutionbc.ca/how-the-crt-works/how-the-process-ends/#what-if... "If you disagree with the CRT’s final decision on a small claims matter, including a default decision, you can pay a fee and file a Notice of Objection with the CRT. The Notice of Objection must be filed within 28 days after a party receives a CRT decision. The CRT cannot issue an order in a small claims dispute until the deadline for filing a Notice of Objection expires. If a Notice of Objection is filed, the CRT decision is not enforceable. If any party wants to continue any of the claims that were included in the dispute, that party must file a Notice of CRT Claim in the BC Provincial Court." So, basically, if one pays the appropriate fees and files a "Notice of Objection", the decision is not enforceable, and further court action (in an established offline court) would be required. In a UDRP/URS context, this means that there'd be no reversal of the roles of plaintiff/defendant in the court, compared with the complainant/respondent in the UDRP/URS procedure. Thus, the UK cause of action issue (from Yoyo.email) doesn't arise, as the TM holder would be the complainat in the court case (if the UDRP/URS decision became not enforceable). Similarly, there'd be no need for any "mutual jurisdiction" clause to be made by a complainant (which may or may not be giving up immunity for the IGO). In any event, if there was a "Notice of Objection", the IGO would then be the complainant in any court case, if they wanted to pursue the matter further. To prevent "gaming" of the notice of objections, various court costs can be assessed in the courts later on, if the party who filed the notice of objection did no better in the court. From that same page: "If the person who filed the Notice of Objection does not have a better outcome in the BC Provincial Court than in the CRT’s decision, the BC Provincial Court may order that party to pay a penalty to the other party" There are great advantages to such a system, that protect due process for all sides, and so it's something we can consider learning from in the RPM PDP later on (unless folks want to consider this an Option #7, although there'd be more work to be done). It can obviously go along with Option #4. Option #1 essentially accomplishes the exact same thing, preserving the natural complainant/defendant rules, without the role reversal. The above simply adds the issue of penalties/costs, to prevent any gaming. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
P.S. We were always struggling to come up with different language in Option #1 for "vitiated" or "set aside". That system's procedure gives us another possible phrase to use, namely "decision is not enforceable". Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Thu, Jun 7, 2018 at 2:59 PM, George Kirikos <icann@leap.com> wrote:
Hi folks,
Probably too late to come up with new options in this PDP at this late stage, but here's some food for thought for how the IGO "quirk of process" issue as well as the Yoyo.email "cause of action" issue in the UK can be completely solved, with various changes to the UDRP/URS process.
In particular, I very recently stumbled upon the "Civil Resolution Tribunal", which is Canada's first online tribunal that handles various small claims and strata (condominium) disputes in British Columbia:
In particular, there's one important part of their rules which (if emulated) would completely solve the issues we're having, see:
https://civilresolutionbc.ca/how-the-crt-works/how-the-process-ends/#what-if...
"If you disagree with the CRT’s final decision on a small claims matter, including a default decision, you can pay a fee and file a Notice of Objection with the CRT. The Notice of Objection must be filed within 28 days after a party receives a CRT decision. The CRT cannot issue an order in a small claims dispute until the deadline for filing a Notice of Objection expires. If a Notice of Objection is filed, the CRT decision is not enforceable. If any party wants to continue any of the claims that were included in the dispute, that party must file a Notice of CRT Claim in the BC Provincial Court."
So, basically, if one pays the appropriate fees and files a "Notice of Objection", the decision is not enforceable, and further court action (in an established offline court) would be required.
In a UDRP/URS context, this means that there'd be no reversal of the roles of plaintiff/defendant in the court, compared with the complainant/respondent in the UDRP/URS procedure. Thus, the UK cause of action issue (from Yoyo.email) doesn't arise, as the TM holder would be the complainat in the court case (if the UDRP/URS decision became not enforceable). Similarly, there'd be no need for any "mutual jurisdiction" clause to be made by a complainant (which may or may not be giving up immunity for the IGO). In any event, if there was a "Notice of Objection", the IGO would then be the complainant in any court case, if they wanted to pursue the matter further.
To prevent "gaming" of the notice of objections, various court costs can be assessed in the courts later on, if the party who filed the notice of objection did no better in the court. From that same page:
"If the person who filed the Notice of Objection does not have a better outcome in the BC Provincial Court than in the CRT’s decision, the BC Provincial Court may order that party to pay a penalty to the other party"
There are great advantages to such a system, that protect due process for all sides, and so it's something we can consider learning from in the RPM PDP later on (unless folks want to consider this an Option #7, although there'd be more work to be done). It can obviously go along with Option #4.
Option #1 essentially accomplishes the exact same thing, preserving the natural complainant/defendant rules, without the role reversal. The above simply adds the issue of penalties/costs, to prevent any gaming.
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
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George Kirikos