Attempt at Achieving Full Consensus -- Option #4
Hi folks, After today's call, I was doing some brainstorming, and wish to present a skeleton proposal for a new Option #4, as a possible viable alternative to Options #1, #2 and #3. First, my strong inclination remains with Option #1, with Option #3 (the limited waiver adjustment to the UDRP language, as opposed to a full waiver as is currently the case, as mentioned by Paul Keating) being my second choice. However, here's my idea for Option #4: (a) For all domains with a creation date prior to the adoption of our final report (say January 1, 2018, for the sake of argument), we go with Option #1 (i.e. this reflects the grandfathering we've discussed previously for existing domain names already created, thereby not taking away the legal rights of registrants (or successors in interest, i.e. transfers) of currently registered domain names. (b) For all domains with a creation date past January 1, 2018, we go with Option #2 (not the current document that was sent to the mailing list today, but a much more polished and thoroughly reviewed version, with stronger due process protections for registrants, including a 2nd level of appeals if necessary and also with the full "open court principle" in effect for all documents/evidence, for all those cases (not just decisions, but also all filings, cross-examinations, etc. in the case) with copies to be maintained on a public website by ICANN (as they do now for their "Litigation" section of their website. (c) All UDRP/URS providers must flag *all* of their disputes involving IGOs as complainants, sending the information to ICANN which will maintain a public record of them (like they used to do for UDRPs, but stopped doing). Not only does ICANN have to track any arbitrations invoked in point (b) above, but ICANN must also track any/all court disputes invoked and subject to point (a) (i.e. the grandfathered domain names), and obtain (at ICANN's expense) all the relevant public court documents/filings/evidence. (d) And here's the key insight, that follows from (a), (b) and (c) -- at the earliest date of (i) five years or (ii) after 10 (or some other number) disputes involving IGOs via Option #2 (i.e. counting just non-grandfathered domains, where the arbitration system might offer less due process than the courts), ICANN shall convene a "review" working group to analyze all of the cases involving IGOs (both grandfathered and non-grandfathered), for the limited purpose of reviewing whether or not the arbitration system has adequately served those domain name registrants (i.e. offered the equivalent level of justice as the court system). Should that review find that the level of due process was equivalent to the courts (i.e. no outrageous decisions/outcomes/process failures, etc. that offends the sensibilities of community, etc.), then Option #2 could continue (for newly created domains only; grandfathered domains would always stay grandfather via Option #1). In the event that arbitration turns out to be an abysmal failure, i.e. subject to forum shopping issues, etc., then newly created domains would revert back to Option #1 (vitiation), just like the grandfathered domain names. That working group shall also seek the input of all parties to the disputes, to get their input on the success of the procedure. So, in other words, we "try out" Option #2, just for newly created domains, while preserving full legal rights under Option #1 for grandfathered domains. Then we impose the obligation upon ICANN, the UDRP/URS providers, and the arbitration providers (via the mandated open court principle) to provide a future "review working group" the ability to go back and double check that there were no negative consequences in the decision to "try out" Option #2 as an experiment. (I was going to use the term "unforeseen consequences", but I think we *can* foresee some of those potential consequences already!) Lastly, we build in a clause that should ICANN fail to complete such a review within 7 years total (measured from the adoption of our final report, i.e. January 1, 2018 for the sake of argument plus 7 years would be January 1, 2025), then Option #2 is eliminated, and we go back to Option #1. Call this a "self-termination" clause, to ensure that a future review itself isn't gamed. i.e. the default is that we go back to Option #1 for everyone, except if a full review determines we can continue with Option #2 for newly created domains. The entire justification of this PDP was due to the new gTLD process. So, this recommendation would say "fine, experiment on newly created domains, both new gTLDs and legacy TLDs to boot; review and assess, and either continue it if no negaitve consequences, or kill it and revert to Option #1 if there are problems". This solves a lot of the issues where ICANN makes bad policies, and then never reviews them (i.e. UDRP being reviewed after 20 years!). Here, we're *building in* the mandatory review as part of our consensus decision-making, if folks agree to go this route. Furthermore, we're empowering that future review working group, *and* ensuring they have all the data that's needed to do a proper review. As we've seen from other working groups, most ICANN policies never contemplated being reviewed, and thus never mandated ongoing data collection. Here, we'd be requiring that data collection from the start. This proposal is still in skeleton form, but I'm posting it now, while the ICANN meeting is ongoing in Joburg, in the hopes we can get some feedback potentially from anyone there, as it might help break an impasse (although, I still believe Option #1 is the best, by a great margin, for reasons previously discussed in depth). Of course, anyone in this PDP with thoughts can post to the mailing list as well, or we can also discuss during a future regular PDP call. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
George: Thank you for this comment. The WG will of course discuss all elements of the multi-part Option 4 that you have put forward for consideration. However, in regard to your statement about "not taking away the legal rights of registrants (or successors in interest, i.e. transfers) of currently registered domain names", this co-chair wishes to go on record as rejecting any implication that anything produced to date by this WG would "take away" the legal rights of domain registrants. The proposal submitted by IGOs, for a separate DRP in which registrants would have no right of de novo judicial appeal, would have stripped registrants of those rights and has consequently been rejected, on both legal and implementation/effectiveness grounds, by a consensus of WG members. Our Initial Report preserved the legal right of DN registrants to seek judicial appeal in a court of mutual jurisdiction, and our Final Report appears likely to do the same. The remaining issue that we are discussing is what should happen when a registrant files such appeal and an IGO successfully asserts an immunity defense to the satisfaction of the presiding judge. In this regard, the Option 2 under discussion is more favorable to DN registrants that current practice in that it would shift the appeal to an arbitration forum under the terms of the national law on which the appeal was brought. It has been the unanimous view of all attorneys we have consulted that if this scenario arose today the UDRP decision would be reinstated upon dismissal of the judicial action and the domain would be transferred or extinguished, leaving the registrant with no meaningful appeal. The balancing factor for IGOs is that, just as we have determined that ICANN would not grant them blanket immunity in advance of a UDRP/URS filing, we leave the determination of the immunity defense to the presiding judge. As Prof. Swaine's memo opined, it would not be unreasonable to require IGOs to renounce the immunity defense to gain the benefits of a lower cost and more rapid DRP than filing a lawsuit. We have not gone that far with a view to as best as possible balancing the legitimate rights and interests of both domain registrants and IGOs while striving to produce a Final Report and Recommendations that can gain approval by the GNSO Council. Regards, Philip ________________________________ From: gnso-igo-ingo-crp-bounces@icann.org <gnso-igo-ingo-crp-bounces@icann.org> on behalf of George Kirikos <icann@leap.com> Sent: Tuesday, June 27, 2017 8:10 AM To: gnso-igo-ingo-crp@icann.org Subject: [Gnso-igo-ingo-crp] Attempt at Achieving Full Consensus -- Option #4 Hi folks, After today's call, I was doing some brainstorming, and wish to present a skeleton proposal for a new Option #4, as a possible viable alternative to Options #1, #2 and #3. First, my strong inclination remains with Option #1, with Option #3 (the limited waiver adjustment to the UDRP language, as opposed to a full waiver as is currently the case, as mentioned by Paul Keating) being my second choice. However, here's my idea for Option #4: (a) For all domains with a creation date prior to the adoption of our final report (say January 1, 2018, for the sake of argument), we go with Option #1 (i.e. this reflects the grandfathering we've discussed previously for existing domain names already created, thereby not taking away the legal rights of registrants (or successors in interest, i.e. transfers) of currently registered domain names. (b) For all domains with a creation date past January 1, 2018, we go with Option #2 (not the current document that was sent to the mailing list today, but a much more polished and thoroughly reviewed version, with stronger due process protections for registrants, including a 2nd level of appeals if necessary and also with the full "open court principle" in effect for all documents/evidence, for all those cases (not just decisions, but also all filings, cross-examinations, etc. in the case) with copies to be maintained on a public website by ICANN (as they do now for their "Litigation" section of their website. (c) All UDRP/URS providers must flag *all* of their disputes involving IGOs as complainants, sending the information to ICANN which will maintain a public record of them (like they used to do for UDRPs, but stopped doing). Not only does ICANN have to track any arbitrations invoked in point (b) above, but ICANN must also track any/all court disputes invoked and subject to point (a) (i.e. the grandfathered domain names), and obtain (at ICANN's expense) all the relevant public court documents/filings/evidence. (d) And here's the key insight, that follows from (a), (b) and (c) -- at the earliest date of (i) five years or (ii) after 10 (or some other number) disputes involving IGOs via Option #2 (i.e. counting just non-grandfathered domains, where the arbitration system might offer less due process than the courts), ICANN shall convene a "review" working group to analyze all of the cases involving IGOs (both grandfathered and non-grandfathered), for the limited purpose of reviewing whether or not the arbitration system has adequately served those domain name registrants (i.e. offered the equivalent level of justice as the court system). Should that review find that the level of due process was equivalent to the courts (i.e. no outrageous decisions/outcomes/process failures, etc. that offends the sensibilities of community, etc.), then Option #2 could continue (for newly created domains only; grandfathered domains would always stay grandfather via Option #1). In the event that arbitration turns out to be an abysmal failure, i.e. subject to forum shopping issues, etc., then newly created domains would revert back to Option #1 (vitiation), just like the grandfathered domain names. That working group shall also seek the input of all parties to the disputes, to get their input on the success of the procedure. So, in other words, we "try out" Option #2, just for newly created domains, while preserving full legal rights under Option #1 for grandfathered domains. Then we impose the obligation upon ICANN, the UDRP/URS providers, and the arbitration providers (via the mandated open court principle) to provide a future "review working group" the ability to go back and double check that there were no negative consequences in the decision to "try out" Option #2 as an experiment. (I was going to use the term "unforeseen consequences", but I think we *can* foresee some of those potential consequences already!) Lastly, we build in a clause that should ICANN fail to complete such a review within 7 years total (measured from the adoption of our final report, i.e. January 1, 2018 for the sake of argument plus 7 years would be January 1, 2025), then Option #2 is eliminated, and we go back to Option #1. Call this a "self-termination" clause, to ensure that a future review itself isn't gamed. i.e. the default is that we go back to Option #1 for everyone, except if a full review determines we can continue with Option #2 for newly created domains. The entire justification of this PDP was due to the new gTLD process. So, this recommendation would say "fine, experiment on newly created domains, both new gTLDs and legacy TLDs to boot; review and assess, and either continue it if no negaitve consequences, or kill it and revert to Option #1 if there are problems". This solves a lot of the issues where ICANN makes bad policies, and then never reviews them (i.e. UDRP being reviewed after 20 years!). Here, we're *building in* the mandatory review as part of our consensus decision-making, if folks agree to go this route. Furthermore, we're empowering that future review working group, *and* ensuring they have all the data that's needed to do a proper review. As we've seen from other working groups, most ICANN policies never contemplated being reviewed, and thus never mandated ongoing data collection. Here, we'd be requiring that data collection from the start. This proposal is still in skeleton form, but I'm posting it now, while the ICANN meeting is ongoing in Joburg, in the hopes we can get some feedback potentially from anyone there, as it might help break an impasse (although, I still believe Option #1 is the best, by a great margin, for reasons previously discussed in depth). Of course, anyone in this PDP with thoughts can post to the mailing list as well, or we can also discuss during a future regular PDP call. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ Leap of Faith Financial Services Inc.<http://www.leap.com/> www.leap.com Leap of Faith Financial Services Inc. is a privately held company based in Toronto, Canada. _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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/
George: As we prepare for this week's call, I wanted to address your concern that I was citing unnamed attorneys for the proposition that, if an IGO successfully asserted an immunity defense today in a judicial appeal brought by a domain registrant following an adverse UDRP decision the dismissal of the court case would result in the release of the hold on the UDRP decision and the subsequent extinguishment or transfer of the domain at issue. I was by no means trying to pad this conclusion by the fact that I had also conferred on this matter with some colleagues who engage in UDRP practice (generally for registrants, not complainants), but I simply don't feel that I have the right to name these people to this list. That said, we had a dialogue on this matter during our June 15th meeting and both Petter and Paul Keating concurred with that conclusion (see transcript of audio and chat below). A look at the text of the UDRP leads to the same conclusion as well: https://www.icann.org/resources/pages/policy-2012-02-25-en k. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 4<https://www.icann.org/resources/pages/policy-2012-02-25-en#4> shall not prevent either you or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel's decision before implementing that decision. We will then implement the decision unless we have received from you during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that you have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii)<https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#3bxiii> of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of your address as shown in our Whois database. See Paragraphs 1<https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#1mutualjurisd...> and 3(b)(xiii)<https://www.icann.org/resources/pages/udrp-rules-2015-03-11-en#3bxiii> of the Rules of Procedure for details.) If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel's decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing your lawsuit or ordering that you do not have the right to continue to use your domain name. So dismissal of the litigation based on an IGO's raising of an immunity defense - which Prof. Swaine believed was a potential outcome in at least some jurisdictions - would lead to a reinstatement and execution of the original UDRP decision. That is why I believe that the Option 2 we have been discussing, by assuring domain registrants of at least a right to arbitration in this scenario under the law and procedural rules that was the basis for the judicial appeal, is more advantageous for the registrant than the current rule, and strikes a good balance between assuring a meaningful right of appeal while leaving decisions on IGO immunity to the courts. Finally, in regard to the language of the Tucows agreement that you cited, that is of course between the registrar and its registrant customer and does not bind an IGO complainant. Best regards, Philip https://community.icann.org/display/gnsoicrpmpdp/2017-06-15+IGO-INGO+Access+... Phil Corwin: Yes, thank you; Phil for the record. As we discuss Option 1 and Option 2, given the fact that this working group has been at this for quite a long time; I believe we're - are we at three years now? But I know we've been going quite a while on this and we'd like to see something concrete result from our work because our work is the first step in a process, and whatever we finally report out will go to Council for its review and hopefully its approval. And we're all aware that the original request of the IGO's forth for a process that did not find support in this working group -- which was for a totally separate DRP not related to the UDRP which it wasn't clear from their ask, but it seemed like it would be based both on Trademark law -- Trademark law rights -- and other rights stemming from their special status -- claim special status which would/could lead to broader rights then complainants in a UDRP So in that context and in anticipation of questions or objections to either of these options, I think we just should openly explore them. And in that context, I want to raise two issues that concern me -- and I've pursued to some extent. The first is we haven't changed -- and Option 1 in no way would change -- the current UDRP. Option 2 would change it slightly for very narrow circumstance that may or may not ever occur. But Option 1 would say that if the IGO successfully asserts an immunity defense in a courtroom and , as we know from Professor Swain, the things that are in our report and in Option 1 are nothing new. An IGO today could file through an agent, assignee or licensee that will need error and paramount to do that. We're simply noting that they have that possibly to take that path if they wish to further insulate their claim and jurisdictional immunity. And under Professor Swain's memo, if an IGO brought an UDRP today and if the domain name registrant lost and decided to file a judicial appeal, the IGO today would be free to assert immunity. And per Professor Swain's memo, they might succeed in that argument notwithstanding the Mutual Jurisdiction Clause or the argument might fail. In my own mind, you know, if immunity is a defense, it would be whether they had waived that defense by agreeing to mutual jurisdiction. So that leaves to - I've engaged with a number of UDRP panelists and other attorneys who notice the (unintelligible) and said if today an IGO asserted successfully asserted immunity -- if there was a judicial appeal from a UDRP decision -- and if the court granted that immunity, what would happen the underlying UDRP decision. And a number of them have said, "Well, it would be reinstated and the domain would be transferred." So I don't know what the answer is, but I think if that's a possibility, we'd be changing that outcome with Option 1 The other concern that I think will come up with Option 1 is that our whole approach up to now has been to say we're not going to have ICANN grant IGO's immunity in advance of judicial determination. If that situation ever arises, it's up to the judge. But the import of Option 1 is essentially to tell the IGO, "Well, your free to assert your immunity, but if you're successful in that claim, the cybersquatting that found by the panel -- you know, and the panel could be wrong, but in many cases, they're right in the defining of cybersquatting -- will be permitted to continue." So I'd like a little more discussion on those two points of what would happen if our working group didn't exist and a scenario arose today where an IGO brought a UDRP -- registrant appealed under a national law, IGO successfully asserted immunity -- what would happen today to the underlying UDRP decision , and is Option 1 consistent with our kind of hands - off approach where we're saying, "We're not going to have ICANN interfere with any determination on the immunity issue; we're going to leave that to the judges and national courts." So I'll stop there. I hope that's helpful and leads to some beneficial discussion. Thank you. Petter Rindforth: Thanks Phil. And as Paul also correctly noted in the Chat, if there is no court action, domain (unintelligible) because that's the decision that is made. And there's a limited time where the losing party can take the case to a court and be handled there. But there's only a very limited time to act. And if nothing happens within that time, the decision -- the written decision -- will be the one that is the legal issue. So transfer or whatever, the decision (unintelligible) https://community.icann.org/display/gnsoicrpmpdp/2017-06-15+IGO-INGO+Access+... Paul Keating:Easy. Domain is transferred based on the UDRP. Paul Keating:THis is the same that would occur if the case were dismissed for any reason. Philip Corwin:I greatly respect Paul's opinion on UDRP matters, and his response is consistent with that of other UDRP panelists and litigating attorneys that I have discussed this with. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: gnso-igo-ingo-crp-bounces@icann.org [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of George Kirikos Sent: Tuesday, June 27, 2017 10:06 AM To: gnso-igo-ingo-crp@icann.org Subject: Re: [Gnso-igo-ingo-crp] Attempt at Achieving Full Consensus -- Option #4 Hello, On Tue, Jun 27, 2017 at 9:38 AM, Phil Corwin <psc@vlaw-dc.com<mailto: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/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org<mailto:Gnso-igo-ingo-crp@icann.org> https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hi folks, On Wed, Jul 19, 2017 at 10:16 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
As we prepare for this week’s call, I wanted to address your concern that I was citing unnamed attorneys for the proposition that, if an IGO successfully asserted an immunity defense today in a judicial appeal brought by a domain registrant following an adverse UDRP decision the dismissal of the court case would result in the release of the hold on the UDRP decision and the subsequent extinguishment or transfer of the domain at issue. I was by no means trying to pad this conclusion by the fact that I had also conferred on this matter with some colleagues who engage in UDRP practice (generally for registrants, not complainants), but I simply don’t feel that I have the right to name these people to this list. That said, we had a dialogue on this matter during our June 15th meeting and both Petter and Paul Keating concurred with that conclusion (see transcript of audio and chat below).
Exactly how much research time was devoted into coming up with those opinions? I note Professor Swaine's opinions came with much scholarly research and time invested, and cited authorities of various courts. Instead, these conclusions come with no legal authorities.
A look at the text of the UDRP leads to the same conclusion as well:
It's been assumed in the analysis that the only court action must be against the complainant (IGO) in the UDRP. That need not be the only option open to a domain name owner. I've actually talked to my own lawyers about how best to approach things (I've already hinted on this list how that would happen, even if the IGO could assert immunity successfully, for the sake of arguments). I'll see if I can share the results of that (paid) research later this week or next, once that research is concluded. Not to pick on Paul Keating, but he's also the person who last week presented a proposal "after much consideration" that contained a very serious flaw (forgetting to look at the supplemental rules) that undermined that opinion in mere minutes of research: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.html That doesn't necessarily mean his conclusion on this other issue is wrong, but I don't think it's necessarily right (see the section I highlighted above, and past discussions on strategies of dealing with an appeal without involving immunity). Legal issues are rarely "easy" ----- they might look like that "on paper". Just like in sports, someone might appear an "overwhelming favourite", but that's why they play the games, to see who actually wins, instead of relying on "paper matches" or theory. The fact that there are no direct precedents on these issues (domain cases involving IGOs that have gone to the courts) leaves lots of room for doubt on all sides.
Finally, in regard to the language of the Tucows agreement that you cited, that is of course between the registrar and its registrant customer and does not bind an IGO complainant.
It does bind the IGO complainant, the moment the domain name transfers to them! An IGO can't be a registrant without agreeing to the registration agreement, which would again subject them to the jurisdiction of the courts for disputes. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Hello George and everyone, If I may, I’d like to follow up on Phil’s note below, where he refers to the language of the UDRP (among other factors) to highlight the fact that the original panel decision will remain to be enforced in a case where an IGO successfully pleads jurisdictional immunity in the national court to which the losing respondent has chosen to submit the dispute. Although staff supporting this Working Group cannot claim to be international arbitration experts, it has seemed to us for some time that ICANN has no legal authority to nullify a panel’s decision (e.g. simply by adding a further provision to the UDRP and URS to that effect in the event the IGO and respondent end up in court). By going beyond its legal authority, ICANN may even be viewed as unduly interfering with the conduct and outcome of the mandatory administrative proceeding. Where an IGO successfully pleads jurisdictional immunity as against a losing domain name registrant/respondent, this means in effect that the case cannot go forward as the court will not be able to hear the case. It is therefore reasonable to conclude that, in such a case, the original panel decision has to stand and the domain in question transferred or canceled, as the case may be. From what I understand, this is basically what Phil, Petter and Paul have noted for the Working Group. The other point that I hope I may make in this email is to note that it is still possible that an IGO will be deemed to have submitted to the jurisdiction of a national court simply by choosing to file a UDRP/URS complaint and thus agreeing to the Mutual Jurisdiction clause. This risk, which was also noted by Professor Swaine, is relevant to both Options 1 & 2. I hope the above is helpful, especially for those Working Group members who have not been able to follow all the discussions as closely. Thanks and cheers Mary (as we have noted this point during some Working Group calls) On 7/19/17, 18:46, "gnso-igo-ingo-crp-bounces@icann.org on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces@icann.org on behalf of icann@leap.com> wrote: Hi folks, On Wed, Jul 19, 2017 at 10:16 AM, Phil Corwin <psc@vlaw-dc.com> wrote: > As we prepare for this week’s call, I wanted to address your concern that I > was citing unnamed attorneys for the proposition that, if an IGO > successfully asserted an immunity defense today in a judicial appeal brought > by a domain registrant following an adverse UDRP decision the dismissal of > the court case would result in the release of the hold on the UDRP decision > and the subsequent extinguishment or transfer of the domain at issue. I was > by no means trying to pad this conclusion by the fact that I had also > conferred on this matter with some colleagues who engage in UDRP practice > (generally for registrants, not complainants), but I simply don’t feel that > I have the right to name these people to this list. That said, we had a > dialogue on this matter during our June 15th meeting and both Petter and > Paul Keating concurred with that conclusion (see transcript of audio and > chat below). Exactly how much research time was devoted into coming up with those opinions? I note Professor Swaine's opinions came with much scholarly research and time invested, and cited authorities of various courts. Instead, these conclusions come with no legal authorities. > A look at the text of the UDRP leads to the same conclusion as well: It's been assumed in the analysis that the only court action must be against the complainant (IGO) in the UDRP. That need not be the only option open to a domain name owner. I've actually talked to my own lawyers about how best to approach things (I've already hinted on this list how that would happen, even if the IGO could assert immunity successfully, for the sake of arguments). I'll see if I can share the results of that (paid) research later this week or next, once that research is concluded. Not to pick on Paul Keating, but he's also the person who last week presented a proposal "after much consideration" that contained a very serious flaw (forgetting to look at the supplemental rules) that undermined that opinion in mere minutes of research: http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.html That doesn't necessarily mean his conclusion on this other issue is wrong, but I don't think it's necessarily right (see the section I highlighted above, and past discussions on strategies of dealing with an appeal without involving immunity). Legal issues are rarely "easy" ----- they might look like that "on paper". Just like in sports, someone might appear an "overwhelming favourite", but that's why they play the games, to see who actually wins, instead of relying on "paper matches" or theory. The fact that there are no direct precedents on these issues (domain cases involving IGOs that have gone to the courts) leaves lots of room for doubt on all sides. > Finally, in regard to the language of the Tucows agreement that you cited, > that is of course between the registrar and its registrant customer and does > not bind an IGO complainant. It does bind the IGO complainant, the moment the domain name transfers to them! An IGO can't be a registrant without agreeing to the registration agreement, which would again subject them to the jurisdiction of the courts for disputes. Sincerely, George Kirikos 416-588-0269 https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&c... _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
Hi Mary, On Wed, Jul 19, 2017 at 11:48 PM, Mary Wong <mary.wong@icann.org> wrote:
If I may, I’d like to follow up on Phil’s note below, where he refers to the language of the UDRP (among other factors) to highlight the fact that the original panel decision will remain to be enforced in a case where an IGO successfully pleads jurisdictional immunity in the national court to which the losing respondent has chosen to submit the dispute.
Let's be specific --- enforced by.....registrars, via ICANN's policymaking requirements.
Although staff supporting this Working Group cannot claim to be international arbitration experts, it has seemed to us for some time that ICANN has no legal authority to nullify a panel’s decision (e.g. simply by adding a further provision to the UDRP and URS to that effect in the event the IGO and respondent end up in court). By going beyond its legal authority, ICANN may even be viewed as unduly interfering with the conduct and outcome of the mandatory administrative proceeding.
That doesn't make any sense at all. ICANN created the UDRP in the first place, and can certainly modify what the outcome means (i.e. its implications and how it is enforced by registrars, see above), and whether it can be nullified. UDRP isn't some independent "law" in itself that some other body created, that has a life of its own. Furthermore, as has been pointed out numerous times, UDRP is not an arbitration, nor an international arbitration. The UDRP is premised upon the Complainant making an undertaking that it will submit to the jurisdiction of the courts. That's the price a complainant pays to use the procedure. ICANN can certainly delineate what should happen (i.e. what obligations a registrar has) should the complainant violate that undertaking by trying to assert that they're not subject to the jurisdiction of the courts (i.e. immunity), perhaps successfully, in a subsequent court case. By the argument above, what "legal authority" (which is now argued to be very limited) use to impose the UDRP on registrants in the first place? What mechanism exists to opt out? The courts do not look kindly upon contracts of adhesion......
Where an IGO successfully pleads jurisdictional immunity as against a losing domain name registrant/respondent, this means in effect that the case cannot go forward as the court will not be able to hear the case. It is therefore reasonable to conclude that, in such a case, the original panel decision has to stand and the domain in question transferred or canceled, as the case may be.
"Reasonable" according to who? Not reasonable in the eyes of a registrant, who sees the UDRP complainant (IGO) violating the undertaking that was made when using the UDRP procedure in the first place. It's more reasonable to penalize the violation of that undertaking by nullifying the outcome of the UDRP, to ensure the supremacy of the courts and availability of national law, which are fundamental rights for domain name registrants to due process which appear in the Universal Declaration of Human Rights (Article 8). http://www.un.org/en/universal-declaration-human-rights/index.html "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." and also Article 17(2). Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Hi All, Looking forward to our further discussion later on today. Just to further clarify what Mary and others have informed about, below see the Policy on the next steps after a UDRP decision on transfer or cancellation. So, if the case is taken to a court (within those 10 - working - days), and the case is dismissed, the only thing the complainant has to do is to show such decision to the Registrar: If the Panel's decision was cancellation or transfer of the domain name(s), the Registrar will wait 10 days before implementing the decision.ICANN Policy paragraph 4(k).The cancellation/transfer (if ordered) will take place unless appropriate legal action is commenced against the Complainant within the 10-day period. Official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) must be sent to the Registrar to prove that legal action has been commenced.Then, the Registrar will not implement the Panel's decision, and will take no further action, until the following is received: (i)satisfactory evidence of a resolution between the parties; (ii)satisfactory evidence that the lawsuit has been dismissed or withdrawn; or (iii)a copy of a court order dismissing the lawsuit or ordering that the party does not have the right to continue to use the domain name. 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 NOTICE This e-mail message is intended solely for the individual or individuals to whom it is addressed. It may contain confidential attorney-client privileged information and attorney work product. If the reader of this message is not the intended recipient, you are requested not to read, copy or distribute it or any of the information it contains. Please delete it immediately and notify us by return e-mail. Fenix Legal KB, Sweden, www.fenixlegal.eu Thank you 20 juli 2017 05:48:24 +02:00, skrev Mary Wong <mary.wong@icann.org>:
Hello George and everyone,
If I may, I’d like to follow up on Phil’s note below, where he refers to the language of the UDRP (among other factors) to highlight the fact that the original panel decision will remain to be enforced in a case where an IGO successfully pleads jurisdictional immunity in the national court to which the losing respondent has chosen to submit the dispute.
Although staff supporting this Working Group cannot claim to be international arbitration experts, it has seemed to us for some time that ICANN has no legal authority to nullify a panel’s decision (e.g. simply by adding a further provision to the UDRP and URS to that effect in the event the IGO and respondent end up in court). By going beyond its legal authority, ICANN may even be viewed as unduly interfering with the conduct and outcome of the mandatory administrative proceeding.
Where an IGO successfully pleads jurisdictional immunity as against a losing domain name registrant/respondent, this means in effect that the case cannot go forward as the court will not be able to hear the case. It is therefore reasonable to conclude that, in such a case, the original panel decision has to stand and the domain in question transferred or canceled, as the case may be.
From what I understand, this is basically what Phil, Petter and Paul have noted for the Working Group. The other point that I hope I may make in this email is to note that it is still possible that an IGO will be deemed to have submitted to the jurisdiction of a national court simply by choosing to file a UDRP/URS complaint and thus agreeing to the Mutual Jurisdiction clause. This risk, which was also noted by Professor Swaine, is relevant to both Options 1 & 2.
I hope the above is helpful, especially for those Working Group members who have not been able to follow all the discussions as closely.
Thanks and cheers Mary
(as we have noted this point during some Working Group calls)
On 7/19/17, 18:46, "gnso-igo-ingo-crp-bounces@icann.org on behalf of George Kirikos" <<gnso-igo-ingo-crp-bounces@icann.org> on behalf of <icann@leap.com>> wrote:
Hi folks,
On Wed, Jul 19, 2017 at 10:16 AM, Phil Corwin <<psc@vlaw-dc.com>> wrote:
As we prepare for this week’s call, I wanted to address your concern that I was citing unnamed attorneys for the proposition that, if an IGO successfully asserted an immunity defense today in a judicial appeal brought by a domain registrant following an adverse UDRP decision the dismissal of the court case would result in the release of the hold on the UDRP decision and the subsequent extinguishment or transfer of the domain at issue. I was by no means trying to pad this conclusion by the fact that I had also conferred on this matter with some colleagues who engage in UDRP practice (generally for registrants, not complainants), but I simply don’t feel that I have the right to name these people to this list. That said, we had a dialogue on this matter during our June 15th meeting and both Petter and Paul Keating concurred with that conclusion (see transcript of audio and chat below).
Exactly how much research time was devoted into coming up with those opinions? I note Professor Swaine's opinions came with much scholarly research and time invested, and cited authorities of various courts. Instead, these conclusions come with no legal authorities.
A look at the text of the UDRP leads to the same conclusion as well:
It's been assumed in the analysis that the only court action must be against the complainant (IGO) in the UDRP. That need not be the only option open to a domain name owner.
I've actually talked to my own lawyers about how best to approach things (I've already hinted on this list how that would happen, even if the IGO could assert immunity successfully, for the sake of arguments). I'll see if I can share the results of that (paid) research later this week or next, once that research is concluded.
Not to pick on Paul Keating, but he's also the person who last week presented a proposal "after much consideration" that contained a very serious flaw (forgetting to look at the supplemental rules) that undermined that opinion in mere minutes of research:
<http://mm.icann.org/pipermail/gnso-igo-ingo-crp/2017-July/000785.html>
That doesn't necessarily mean his conclusion on this other issue is wrong, but I don't think it's necessarily right (see the section I highlighted above, and past discussions on strategies of dealing with an appeal without involving immunity). Legal issues are rarely "easy" ----- they might look like that "on paper". Just like in sports, someone might appear an "overwhelming favourite", but that's why they play the games, to see who actually wins, instead of relying on "paper matches" or theory. The fact that there are no direct precedents on these issues (domain cases involving IGOs that have gone to the courts) leaves lots of room for doubt on all sides.
Finally, in regard to the language of the Tucows agreement that you cited, that is of course between the registrar and its registrant customer and does not bind an IGO complainant.
It does bind the IGO complainant, the moment the domain name transfers to them! An IGO can't be a registrant without agreeing to the registration agreement, which would again subject them to the jurisdiction of the courts for disputes.
Sincerely,
George Kirikos 416-588-0269 <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwIGaQ&c...>
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp>
_______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org <https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp>
Hi Petter, On Thu, Jul 20, 2017 at 10:20 AM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote:
So, if the case is taken to a court (within those 10 - working - days), and the case is dismissed, the only thing the complainant has to do is to show such decision to the Registrar:
As I've noted separately, that might not be enough, especially because there might be parallel litigation relating to the domain name itself (in rem, or other creative options). The ICANN policy only contemplates **one possible scenario** as to the litigation that might be taken against a domain name in dispute during/after a UDRP. If that was the *only* litigation surrounding the fate of that domain name, then that might be the end of the story. But, it need not be. Whenever there is active litigation, registrars will tend to put a litigation hold on the domain pending the resolution of ALL active cases. If that parallel litigation survives, the registrar would hold the status quo until all active court processes are exhausted. I think folks are not thinking outside the box here, they've been perhaps mesmerized by re-reading the UDRP policy too often and thinking that it's the alpha and omega of the relevant law. It's not. There's a whole world of real law that exists outside the UDRP. Just because ICANN delineates one possible course of litigation with respect to challenging the outcome of a UDRP doesn't mean that a registrant is bound to use *only* that mechanism. ICANN has no say over any other legal mechanism(s) a registrant uses to assert their ownership claim before a relevant national court. Just like ICANN has no say over any legal mechanism(s) a non-registrant uses to dispute a domain name without resorting to use of the UDRP. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
Hello again George and everyone, 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. 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. I hope this clarifies the staff concern. Thanks and cheers Mary On 7/20/17, 10:58, "gnso-igo-ingo-crp-bounces@icann.org on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces@icann.org on behalf of icann@leap.com> wrote: Hi Petter, On Thu, Jul 20, 2017 at 10:20 AM, Petter Rindforth <petter.rindforth@fenixlegal.eu> wrote: > So, if the case is taken to a court (within those 10 - working - days), and > the case is dismissed, the only thing the complainant has to do is to show > such decision to the Registrar: As I've noted separately, that might not be enough, especially because there might be parallel litigation relating to the domain name itself (in rem, or other creative options). The ICANN policy only contemplates **one possible scenario** as to the litigation that might be taken against a domain name in dispute during/after a UDRP. If that was the *only* litigation surrounding the fate of that domain name, then that might be the end of the story. But, it need not be. Whenever there is active litigation, registrars will tend to put a litigation hold on the domain pending the resolution of ALL active cases. If that parallel litigation survives, the registrar would hold the status quo until all active court processes are exhausted. I think folks are not thinking outside the box here, they've been perhaps mesmerized by re-reading the UDRP policy too often and thinking that it's the alpha and omega of the relevant law. It's not. There's a whole world of real law that exists outside the UDRP. Just because ICANN delineates one possible course of litigation with respect to challenging the outcome of a UDRP doesn't mean that a registrant is bound to use *only* that mechanism. ICANN has no say over any other legal mechanism(s) a registrant uses to assert their ownership claim before a relevant national court. Just like ICANN has no say over any legal mechanism(s) a non-registrant uses to dispute a domain name without resorting to use of the UDRP. Sincerely, George Kirikos 416-588-0269 https://urldefense.proofpoint.com/v2/url?u=http-3A__www.leap.com_&d=DwICAg&c... _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp
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/
Hi folks, Just to followup on last week's email: On Wed, Jul 19, 2017 at 6:46 PM, George Kirikos <icann@leap.com> wrote:
It's been assumed in the analysis that the only court action must be against the complainant (IGO) in the UDRP. That need not be the only option open to a domain name owner.
I've actually talked to my own lawyers about how best to approach things (I've already hinted on this list how that would happen, even if the IGO could assert immunity successfully, for the sake of arguments). I'll see if I can share the results of that (paid) research later this week or next, once that research is concluded.
Patricia McMahon of Torys (same law firm I used for the successful Pupa.com domain dispute litigation): http://www.torys.com/people/mcmahon-patricia looked into this for me, and confirmed my thoughts on the 'in rem' alternate approach (i.e. as opposed to, or even in conjunction with an in personam case brought against the IGO) to oppose a UDRP transfer decision, at least in Canada: "Building on the Court of Appeal’s finding that a domain name is intangible property (See Tucows.com Co. v. Lojas Renner S.A.),[ http://canlii.ca/t/fmjtv ] the recent case of Western Steel and Tube Ltd v. Technoflange Inc. [ http://canlii.ca/t/h3j5g ] suggests that, where proper procedures are followed, an in rem declaration may be available to protect domain names. Such claim for a declaration would be brought under section 97 of the Courts of Justice Act. Unfortunately, the decision of the trial judge who awarded the in rem declaration in Western Steel Tube is not available, so I have not been able to read the court’s reasoning on the point." (she said it was fine if I shared this with the working group; we're trying to get a copy of the Western Steel Tube trial judge decision, too) Anyhow, we had a 30 minute conversation earlier today after I received her written analysis where we ran through various scenarios/options, including the Options 1, 2, 3, 4, etc. that our PDP has been contemplating, and based on that I don't think we've "missed anything" as a group as to what the implications would be of the various approaches/proposals. Sincerely, George Kirikos 416-588-0269 http://www.leap.com/
participants (4)
-
George Kirikos -
Mary Wong -
Petter Rindforth -
Phil Corwin