PHIL, Just a short refrain to your comments: 1. While I nominally remain co-chair of this WG, control over it has essentially been assumed by the Chair of the GNSO Council via the Council Liaison, as the WG's authority is solely derived from Council. RESPONSE. This is not correct. On April 26th Susan stated in an email (copied below in full at the end of my email): "I understand from last week’s call that members of the group are willing and keen to work together to reach a final document, and I fully support that happening." "It is the role of the WG, not the liaison or the Council, to drive the effort to a final document for presentation to Council.” "Our recommendation can be boiled down to suggesting that the WG develop its final output for presentation to the GNSO Council; if consensus cannot be reached on any particular points, the various options raised should be identified, as these are an important record of the ideas proposed but not agreed upon. Recording this information indeed was our intention in conducting the WG member consultation process." If she had meant that the WG was under the control of the liaison or Council she would have said so. She did not. She said “working group" 2. I find it both ironic and sad that the WG was brought to a halt by Mr. Kirikos months ago because the co-chairs proposed to poll the full WG membership to initiate the consensus call process, and that he persisted in that appeal even after the co-chairs modified that proposal to assure that the poll would be conducted in a fully transparent matter -- yet now he has elected to conduct his own poll. RESPONSE. This is not correct. I participated in the appeal process and the related calls. The resulting agreement was to have the liaison attempt to determine if there was consensus and if so what that was. The issue of polls was discussed as a post-liaison process on the condition that it would be transparent - as opposed to your original non-transparent plan that lead to the appeal. 3. Mr. Kirikos has no authority under the GNSO WG Guidelines to conduct such a poll and its results have no official status. RESPONSE. I find this a counter-productive statement that ignores the goal of actually achieving consensus and working towards the preparation of the final report. Whether it is “official” or not, it helps guide the conversation forward. It is a transparent broadcast of the views of those who responded. I even supplemented my responses with my reasoning as to each option. 3. I must also note that option 4 -- referral of any decisions on the IGO CRP matter to the RPM Review WG -- is fundamentally incompatible with any of the other options, which would make policy decisions now within the IGO CRP WG. Yet several members are supporting both option 4 and others. Whether that RPM WG will address IGO immunity issues specifically, or sovereign immunity issues more generally, and whether addressing that subject requires a Charter change, will be determined by its membership at the appropriate time. RESPONSE. First, I do not see how they are incompatible. Nothing in Option 4 precludes the final report from expressing the WG views as to immunity. Second, Option 4 refers the underlying need for Policy/Rules alteration to the appropriate WG for consideration as to any changes that may or may not be required to the UDRP or URS policies or underlying rules. 4. The Recommended Next Steps contained in the "SUMMARY REPORT FROM THE GNSO COUNCIL LIAISON ON THE CURRENT STATUS OF CONSULTATIONS WITH THE IGO-INGO CURATIVE RIGHTS PDP WORKING GROUP (12 April 2018)" continue to be those that govern this WG as it comes to a conclusion. RESPONSE. It would appear that Susan is recommending that the WG continue to work towards identifying a consensus AND that the WG work towards producing a “final report” by May 14th. She even offers her assistance to work with a drafting team. And, in the case consensus is not easily identified she provides reference to another WG team and its approach (listing the various options and indicating the level of support for each). However, I see nothing in her recommendations that would support abandoning efforts to identify consensus. Susan also stated in her April 26th email: "I remain very willing to support and assist the WG in developing a final report, and I understand from last week’s call that other members of the WG are likewise willing. I suggest therefore that we form a small drafting team with a view to developing a final report by 14 May, in time for submission and consideration by the Council during the 24 May GNSO Council meeting." +++++++++++++++++++++ Here is the entirety of Susan’s April 26th email for anyone doubting the quotations above: Mary Wong mary.wong at icann.org <mailto:gnso-igo-ingo-crp%40icann.org?Subject=Re:%20Re%3A%20%5BGnso-igo-ing o-crp%5D%20Message%20from%20Susan%20Kawaguchi%20%28GNSO%20Council%0A%20liai son%20to%20the%20IGO-INGO%20Curative%20Rights%20PDP%20Working%20Group%29&In -Reply-To=%3CB2B97E1F-F7E0-47D0-AACE-FC8B6B9ADFB4%40icann.org%3E> Thu Apr 26 15:13:17 UTC 2018 * Previous message: [Gnso-igo-ingo-crp] Question about Professor Swaine's memo - SUPPORT FOR #4. <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001137.html> * Next message: [Gnso-igo-ingo-crp] Everything Wrong with the IGO PDP Summary Report from the Liaison (was Re: GNSO Council Liaison Summary Report (Re: IGO-INGO Curative Rights Policy Development Process Working Group)) <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/001139.html> * Messages sorted by: [ date ] <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/date.html#1138

[ thread ] <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/thread.html#1 138> [ subject ] <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/subject.html# 1138> [ author ] <https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-April/author.html#1 138>

________________________________________ Dear Working Group members, Please see the email message below, which staff is sending on behalf of Susan Kawaguchi, the GNSO Council liaison to our PDP Working Group. Dear IGO-INGO Curative Rights Policy Development Process (PDP) Working Group members, I write in my role as GNSO Council liaison to this Working Group (WG) to follow up on the WG meeting held last week and to clarify misunderstandings that may have arisen from that call. The intention in providing a report of the WG member consultation process was to develop a record of the views expressed in that process. Ultimately, a PDP WG is required to report its findings to the GNSO Council. The member consultation process was intended to provide a workable pathway to reaching this point, and the record of those views intended to inform the WG’s final report to the GNSO Council. I understand from last week’s call that members of the group are willing and keen to work together to reach a final document, and I fully support that happening. While the member consultation process was initiated to address a Section 3.7 appeal under the GNSO WG Guidelines in which concerns were raised about the appropriate means of designating WG consensus, the recommendations made by me and the GNSO Chair go beyond the Section 3.7 appeal, because the input received during the consultation process raised other issues going beyond the scope of the appeal. Many of these other issues dovetailed with the GNSO Council’s current initiative to improve the effectiveness and efficiency of PDPs (a process we call “PDP 3.0”). One of the priorities raised by the Council in its Strategic Planning Session in January 2018 and by PDP leaders and the community in a workshop held at ICANN61 was for Council to take a more active role in supporting and managing PDP timelines. In its Strategic Planning Session, the GNSO Council identified completion of this PDP’s work by mid-year to be a top priority based on the broader GNSO PDP workload and each PDP’s timeline and milestones. Ultimately, Heather’s and my recommendation that the WG wind up its work takes that input from the GNSO Council into account. Our recommendation can be boiled down to suggesting that the WG develop its final output for presentation to the GNSO Council; if consensus cannot be reached on any particular points, the various options raised should be identified, as these are an important record of the ideas proposed but not agreed upon. Recording this information indeed was our intention in conducting the WG member consultation process. To clarify, the intention of the WG member consultation process was never to guarantee or influence a particular substantive outcome, or even to guarantee that consensus would be reached on any/all points under discussion; it was merely to provide an alternative approach by which members could voice their views on the points under discussion and capture these for inclusion in the record and to gain an understanding of each WG member’s point of view. It is the role of the WG, not the liaison or the Council, to drive the effort to a final document for presentation to Council. To that end, we suggested that if the group cannot achieve consensus on any particular points, then the model of the Cross-Country Working Group for the Use of Country & Territory Names as TLDs (CWG-UCTN) Final Report would be instructive (that group’s final report contains three recommendations on which consensus was reached, and a fourth recommendation presented in option form with support recorded for each option). I remain very willing to support and assist the WG in developing a final report, and I understand from last week’s call that other members of the WG are likewise willing. I suggest therefore that we form a small drafting team with a view to developing a final report by 14 May, in time for submission and consideration by the Council during the 24 May GNSO Council meeting. Kind regards, Susan (GNSO Council liaison to the IGO-INGO Curative Rights PDP WG) Thank you, Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE On 5/8/18, 9:09 PM, "Gnso-igo-ingo-crp on behalf of Corwin, Philip via Gnso-igo-ingo-crp" <gnso-igo-ingo-crp-bounces@icann.org on behalf of gnso-igo-ingo-crp@icann.org> wrote:

While I nominally remain co-chair of this WG, control over it has essentially been assumed by the Chair of the GNSO Council via the Council Liaison, as the WG's authority is solely derived from Council.

I find it both ironic and sad that the WG was brought to a halt by Mr. Kirikos months ago because the co-chairs proposed to poll the full WG membership to initiate the consensus call process, and that he persisted in that appeal even after the co-chairs modified that proposal to assure that the poll would be conducted in a fully transparent matter -- yet now he has elected to conduct his own poll.

Mr. Kirikos has no authority under the GNSO WG Guidelines to conduct such a poll and its results have no official status.

I must also note that option 4 -- referral of any decisions on the IGO CRP matter to the RPM Review WG -- is fundamentally incompatible with any of the other options, which would make policy decisions now within the IGO CRP WG. Yet several members are supporting both option 4 and others. Whether that RPM WG will address IGO immunity issues specifically, or sovereign immunity issues more generally, and whether addressing that subject requires a Charter change, will be determined by its membership at the appropriate time.

The Recommended Next Steps contained in the "SUMMARY REPORT FROM THE GNSO COUNCIL LIAISON ON THE CURRENT STATUS OF CONSULTATIONS WITH THE IGO-INGO CURATIVE RIGHTS PDP WORKING GROUP (12 April 2018)" continue to be those that govern this WG as it comes to a conclusion.

I know that some members of this WG may wish to engage me in debate or dialogue regarding the above statement, but I shall have nothing further to say in advance of Thursday's call.

Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

-----Original Message----- From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Bikoff, James Sent: Tuesday, May 08, 2018 2:23 PM To: George Kirikos <icann@leap.com>; gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> Subject: [EXTERNAL] Re: [Gnso-igo-ingo-crp] Public Display of Possible Consensus

No on others.

James L. Bikoff | Attorney at Law

202-263-4341 Phone 202-263-4329 Fax www.sgrlaw.com jbikoff@sgrlaw.com

1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007

Smith, Gambrell & Russell, LLP

-----Original Message----- From: George Kirikos [mailto:icann@leap.com] Sent: Tuesday, May 08, 2018 2:20 PM To: Bikoff, James; gnso-igo-ingo-. Subject: Re: [Gnso-igo-ingo-crp] Public Display of Possible Consensus

Thanks for posting, James.

Just for completeness, do you have a position (for/against) the other 5 options? I plan to make a table at some point, to summarize things, and don't want to have empty spaces. It could be yes/no/maybe/unsure, etc.

Sincerely,

George

On Tue, May 8, 2018 at 2:17 PM, Bikoff, James <jbikoff@sgrlaw.com> wrote:

...

I am also in favor of option 4.

Jim

James L. Bikoff | Attorney at Law

202-263-4341 Phone 202-263-4329 Fax www.sgrlaw.com jbikoff@sgrlaw.com

1055 Thomas Jefferson Street, N.W. Suite 400 Washington, D.C. 20007

Smith, Gambrell & Russell, LLP

-----Original Message----- From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of David W. Maher Sent: Tuesday, May 08, 2018 1:57 PM To: gnso-igo-ingo-. Subject: Re: [Gnso-igo-ingo-crp] Public Display of Possible Consensus

CAUTION: This email is from an external source. Do not click links or attachments unless it's from a verified sender. ________________________________

My preferences are as follows: Option 1: Yes Option 2: No Option 3: No Option 4: Yes Option 5: No Option 6: No

In general, I agree with Paul Keating's reasoning, with the minor exception that I would prefer Option 4 over Option 1 because Option 4 gives the IGOs an opportunity to have their voice heard. David Maher

David W. Maher Public Interest Registry Senior Vice-President - Law & Policy +1 312 375 4849

-----Original Message----- From: Gnso-igo-ingo-crp [mailto:gnso-igo-ingo-crp-bounces@icann.org] On Behalf Of Paul Keating Sent: Tuesday, May 08, 2018 8:18 AM To: Paul Keating <Paul@law.es>; George Kirikos <icann@leap.com>; gnso-igo-ingo-. <gnso-igo-ingo-crp@icann.org> Subject: Re: [Gnso-igo-ingo-crp] Public Display of Possible Consensus Importance: High

Having been asked by several people for my reasoning behind my votes, I thought I would simply post it openly.

Option 1: Yes.

This is a simple solution that returns the process to a balance. It leaves the IGO with the complete freedom of choice (just as it had in filing the UDRP). The consequence (voiding the UDRP) is a simple and easily understood consequence of seeking the benefit of immunity AND does not bog us down in discussions as to whether immunity existed or whether it had already been waived by the IGO via the UDRP filing.

Option 2: NO.

Although a nice attempt to seek compromise, I found it too confusing and feared it would lead to us becoming bogged down in discussion over details.

Option 3: NO.

I am most opposed to the idea of this WG attempting to create any form of alternative dispute system. This is more appropriately addressed by a wider and more fully functioning WG such as that addressing the RPM.

Option 4: YES.

I am fully in favor of suggesting that the other WG handle this matter. They are a larger group with more professionals on board. They are also experienced in tackling complex issues. I know this because I am a member of both this and the RPM WG.

Option 5: NO.

Issues of ³in rem² and declaratory relief are inherently common law principles and are not shared by many jurisdictions, including those based upon civil law (that which looks only to statutes and not to prior judicial decisions as the reference point). This would require too much discussion by this WG to achieve true consensus as to what is or is not involved in turning this option into the more robust descriptions necessary. Also, I have had no difficulty in dealing with post-UDRP claims based upon this distinction (suing a party or suing a thing). I also am unsure if a US in rem action would be permitted to continue in the absence of an IGO that successfully asserted sovereign immunity. So, overall, too complex for this WG given its directive.

Option 6: NO.

I STRONGLY favor any form of mediation and have previously provided my thoughts and concerns over the Nominet program. I ENCOURAGE Brian and anyone else (at either WIPO or NAF) to initiate such a program. Initiating such a program would not require any modification to to the UDRP as it could be entirely voluntary. HOWEVER, to the extent that this Option 6 would require discussion and consensus surrounding the rules underlying an obligatory mediation program, such is beyond the scope of this WG and not likely to have a successful outcome, particularly given what has been transpiring in this WG to date.

So, there you have my thoughts.

I ENCOURAGE all WG members to respond to George¹s email regardless of your views.

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email: Paul@law.es

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NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE

On 5/8/18, 2:36 PM, "Gnso-igo-ingo-crp on behalf of Paul Keating" <gnso-igo-ingo-crp-bounces@icann.org on behalf of Paul@law.es> wrote:

...

All (and Mary),

I have previously stated my position regarding these matters but am growing concerned that my vote has not been counted in the ensuing documentation that has been issued.

To be VERY clear please note my voting as to the options as follows:

----------------------------------

Name: PAUL KEATING Option 1: Yes Option 2: NO Option 3: NO Option 4: YES Option 5: NO Option 6: NO

Please note that my preference is for #1 (UDRP decision becomes void) BUT I also want to be counted for #4 (referral to RPM WG).

Thank you,

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email: Paul@law.es

THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS.

Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.

NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE

----------------------------------

On 5/7/18, 8:42 PM, "Gnso-igo-ingo-crp on behalf of George Kirikos" <gnso-igo-ingo-crp-bounces@icann.org on behalf of icann@leap.com> wrote:

...

Hi folks,

Since there's been no response to the call for the true numbers to be posted:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-May/001140.html

let's attempt to do this transparently. I believe we might already have a consensus.

The 6 options (not mutually exclusive!) were at:

https://mm.icann.org/pipermail/gnso-igo-ingo-crp/2018-March/001093.ht m l

Briefly:

Option 1: set aside the UDRP/URS decision, to put both sides back in the same position

Option 2: use Option 1 for existing domain names, and Option 3 for newly created domains

Option 3: arbitration

Option 4: refer it to the RPM PDP

Option 5: lock the domains in the event of an "in rem" lawsuit (not just "in personam")

Option 6: mediation as a step, and then back to Option 1 if need be

If you'd like to post your position/thoughts in an open and transparent manner, please do so in this thread, using the following template

----------------------------------

Name: Option 1: Option 2: Option 3: Option 4: Option 5: Option 6:

----------------------------------

For myself:

Option 1: yes, I support this (ultimately my first choice)

Option 2: yes, I can support this as a compromise

Option 3: no, I can't support this

Option 4: yes, I can support this; Paul Keating's prior suggestion of having Option 1 be the interim solution if Option 4 is

Option 5: yes, I support this, and it works in parallel to all other options

Option 6: yes, I support mediation

Sincerely,

George Kirikos 416-588-0269 http://www.leap.com/ _______________________________________________ Gnso-igo-ingo-crp mailing list Gnso-igo-ingo-crp@icann.org https://mm.icann.org/mailman/listinfo/gnso-igo-ingo-crp

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