Dear all, As you begin reviewing the UNCITRAL Arbitral Rules (link provided in the email below), and following up on the WG request on the call held yesterday, please find attached: (1) the WIPO Secretariat’s 2003 paper outlining the possibility of a de novo appeal mechanism for domain name disputes; and (2) the staff briefing note on the topic that had been prepared in March 2015. For your convenience, they are also available on the WG wiki: https://community.icann.org/x/DrvhAg. Please also note some of the differences between the mechanism described in the WIPO Secretariat paper highlighted in the staff briefing note, e.g. the paper was directed toward the issue of country names and focused on the nature of state (sovereign) immunity. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org Telephone: +1-603-5744889 From: Mary Wong mary.wong@icann.org<mailto:mary.wong@icann.org> Date: Thursday, July 28, 2016 at 16:50 To: "gnso-igo-ingo-crp@icann.org" <gnso-igo-ingo-crp@icann.org> Subject: The UNCITRAL Arbitral Rules and the UDRP Dear all, As referenced by Professor Swaine and as part of the WG’s deliberations over the advisability of adding some form of arbitral appeal mechanism to the existing dispute resolution processes, here is the full set of the UNCITRAL Arbitral Rules (last revised in 2010): http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-.... Not being an expert in international arbitration, it would nevertheless seem that some features of the Rules that might be of greatest interest to our WG include the following: · They are procedural only, and do not bind parties to a particular seat/location or a specific institution to administer the proceeding or appoint the arbitrator(s) · They can be modified by the parties’ agreement · They contemplate the possibility that an arbitration does not have to be in-person or involve oral hearings, i.e. can be decided on the basis of documents and submitted materials · The parties can agree on the number of arbitrators (e.g. a sole arbitrator) with allowance for a three-member panel in certain situations · The appointment of an arbitrator can be challenged · The arbitration is to be conducted “in such manner as [the arbitral tribunal] considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute” · The language of the proceedings is determined by the arbitral tribunal · Expert witnesses can be appointed · The tribunal is to apply the “rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law which it determines to be appropriate.” · The arbitration award is final and binding on all the parties · The tribunal can determine how to fix its fees, which are to be reasonable and subject to any framework developed by the appointing authority · Costs are in principle borne by the losing party, though the tribunal may apportion them in appropriate cases In view of the above, staff suggests that in further considering the option of adding/including arbitral appeal – possibly through reference to the UNCITRAL Arbitral Rules – the following questions can be discussed: 1. How appropriate, and applicable, are the UNCITRAL Arbitral Rules to an appeal from a domain name dispute between an IGO and a registrant? 2. Are there any parts of the Rules that need to be modified, if the Rules are adopted for an appeal arising out of a UDRP proceeding? 3. If adopted, should the [modified] Rules apply to all IGOs on the GAC list or only to certain IGOs (e.g. the UN and possibly also its Specialized Agencies)? Finally, the Working Group may find helpful a 2003 WIPO Secretariat paper that analyzed the use of arbitral appeal in the case of States and country names (i.e. not IGO names or acronyms): http://www.wipo.int/edocs/mdocs/sct/en/sct_11/sct_11_5.pdf. ICANN staff had summarized this paper for the Working Group in March 2015, and noted that the paper focused on a de novo appeal procedure that was not intended to replace the Mutual Jurisdiction clause of the UDRP, but that would “strike a balance between the privileges and immunities of sovereign states on the one hand, and the right of a losing UDRP respondent to have the dispute reconsidered in a neutral forum on the other”. It also contained the following general minimum recommendations: (1) The parties should be able to restate their case completely anew. They should not be confined to claiming that the UDRP panel did not consider certain relevant facts or wrongly applied the UDRP, but should also be able to submit new evidence and new factual or legal arguments. (2) In order to provide a meaningful “appeal,” conducting a de novo arbitration should, as a general rule, not be more burdensome than conducting litigation in a court of mutual jurisdiction. (3) The arbitral tribunal should consist of one or more neutral and independent decision makers, who should not be identical or related to the panelists who rendered the UDRP decision (4) Either party should be able to present its case in a complete manner. The arbitral tribunal should, for example, have the authority to allow for, or request, additional written submissions, and it should be possible to hold in‑person hearings. Thanks and cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org Telephone: +1-603-5744889