Some thoughts on the document that was circulated last week: For Option 1: ------------------ (i) "What would be the advantage of vitiating the initial panel determination in such a case? Does this mean that the registrant can transfer the domain once the lawsuit is filed?" Vitiating the UDRP decision only takes place if the IGO successfully asserts immunity (thereby terminating the lawsuit). Vitiating the UDRP decision thus maintains the "status quo" as if the UDRP had never been filed. The IGO can then decide whether to pursue other kinds of actions (e.g. voluntary arbitration, voluntary mediation, or intervention by national authorities). Second sentence doesn't make sense. Filing the lawsuit preserved the status quo (registrar lock/hold) with the registrar, and kept the registrant the same (i.e. that of the original domain name registrant, who was the respondent of the UDRP, and complainant in the lawsuit). Nothing happens until the lawsuit is concluded (and any/all available appeals). (ii) "What are the implications of saying that merely filing a court complaint means an otherwise legally-valid panel determination is now void and has no legal effect? What can/must the registrar do in such an instance?" The mere filing of a court complaint doesn't do anything. IGO has to make a decision as to whether to assert immunity, and await the court's determination as to whether to accept that defense to the court action. Registrars must wait until the court has made a final determination. i.e. only the court can order a transfer of the domain name (i.e. which is what one would expect, if the UDRP didn't exist), as well as any/all available appeals. (iii) "Risk that since the Mutual Jurisdiction clause remains unchanged, a court could rule that an IGO has already waived its immunity by agreeing to the Mutual Jurisdiction clause in the first place." This "risk" exists for both scenarios. i.e. for both options 1 and 2, they only discuss what happens after successfully asserting immunity. If immunity is not asserted, or the immunity defense is asserted but fails, neither alternative is in play. Neither option proposes to touch the existing mutual jurisdiction clause. (iv) Another benefit of Option 1 is that it ensures that national laws (including all legal arguments and precedents available to domain name registrants) are interpreted by those most qualified to hear them, namely active judges of those national courts. In arbitration, those hearing the matters are by definition less qualified, since they are not active judges of the relevant jurisdictions. (v) Another benefit of Option 1 is it discourages forum shopping by IGOs, whereby IGOs can unfairly select a venue where the playing field is tilted in their favour. (vi) The most important benefit of Option 1 is that it ensures the supremacy of the courts. ICANN has to follow the law, and not make up its own laws that replace the courts. Choosing anything but option 1 creates a dangerous precedent which will encourage others to come to ICANN to create policies inconsistent with, and that override, national laws. For Option 2 ------------------ (i) "Consistent with the requests from the GAC and the IGOs" If we're going to claim that this is a "benefit", then one should add a comparable benefit to Option #1, i.e. "preserves rights of registrants to fundamental rights of access to national courts" (ii) "Familiar and commonly used in commercial transactions (including many IGO contracts)" -- I disagree that this is a "benefit". Lawsuits are also "familiar" and "commonly used" in commercial transactions. (iii) "Does not trigger difficult legal questions about the legal implications of vitiating a panel decision (per Option 1)." I don't understand this point at all. There are no "difficult legal implications" of vitiating a panel decision. It simply preserves the status quo, as if the UDRP didn't exist. The order of the UDRP panel is set aside, and both sides can consider their options from a blank slate. (iii) Another disadvantage of Option 2 is the lack of full public scrutiny, transparency and accountability, due to lack of full access to arbitration pleadings/documents, unlike courts which operate under the "open court principle." Furthermore, decisions under Option 2 create no "precedents" that can be cited in national courts, unlike real court cases. This is important, given that any disputes that trigger either Option 1 or Option 2 are going to be over high value domain name, the ones most likely to be vigorously contested, and thus the ones that have the greatest potential in creating precedents for others if they are contested in courts. (iv) Another disadvantage of Option 2 is lack of multiple appeal privileges, as exist in national courts. e.g. with court cases in Canada, the first court level might be the Ontario provincial courts, the second level might be the Ontario Court of Appeal, and the third level would be Supreme Court of Canada. With option 2, there is just 1 level, the binding arbitration. Multiple appeals help ensure the correct decision is ultimately realized. (v) Another important disadvantage of Option 2 is the potential divergence between arbitration decisions and those of the underlying national courts, with no opportunity to reconcile them. As we've seen, courts routinely overturn UDRP decisions, demonstrating that access to the courts is essential to protect registrants from the whims of arbitrators who ignore national laws and precedents. With option 2, rogue/extremist panelists would be emboldened to persistently and permanently deviate in their rulings from the relevant national laws, since there would be no mechanism of having their decisions circumscribed by those laws. (vi) Another disadvantage of Option 2 is that the UDRP/URS "test" would become de facto law (as would the remedies, i.e. transfer or cancellation), whereas a court is free to award money damages, grant injunctive relief to stop a particular confusing usage (but allow one to retain the domain name for other uses), etc. or find a different legal test, according to its own national laws. This is a crucial point, since the UDRP/URS were not designed to replace the national laws. (vii) Another disadvantage of Option 2 is it would take away rights for existing domain name registrants (which can be reduced somewhat, if Option 2 only applied to new gTLDs, or to domains with a creation date after the implementation of any new policy changes). In conclusion, I'd reiterate my previous comments at: https://forum.icann.org/lists/comments-igo-ingo-crp-access-initial-20jan17/m... Sincerely, George Kirikos 416-588-0269 http:///www.leap.com/ On Wed, May 17, 2017 at 5:26 PM, Mary Wong <mary.wong@icann.org> wrote:

Dear Working Group members,

Please find attached a preliminary draft document that staff has prepared pursuant to the group’s request on the call last week. The document attempts to summarize the benefits and disadvantages of recommending either Option 1 or Option 2, in relation to the IGO immunity question and the appropriate handling of further proceedings based on an initial UDRP/URS panel decision.

As this is a “living document”, please let us know what your comments and any additional pros/cons are. We can also put the document into a Google Doc format if that will make it easier for everyone to comment and edit.

Thanks and cheers

Mary

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